The President of Warsaw issued a decision determining the conditions
of building and real estate spatial development for the investment
consisting in complex rebuilding of the stretch of the street. The
investment comprised the building of lighting and modernisation of
energetic net and savage system. The President of Warsaw confirmed also a
building project and conferred a building permit in the form of
administrative decision, what is required by the Polish Construction
(Building) Law (the act of 7th July 1994).
A
non-governmental organisation, an association dealing with
environmental protection, applied to be admitted in the capacity of a
participant of this administrative proceeding and appealed against the
latter decision.
The
Mazovian Voivode, as an administrative review authority, discontinued –
in the form of decision – the revising proceeding. In the reasons
/reasoning/ of this decision he underlined first of all that the
organisation has no status of the party of the proceeding concerning the
building permit. The Voivode evoked art. 28 of the Construction Law,
which defines the group of subjects, who is entitled to act as the party
of this proceeding (it statutes that parties to the proceedings
regarding a construction permit are only the applicant and owners or
administrators of properties situated in the area affected by the
building structure), and which excludes the application of art. 31 of
The Administrative Procedure Code (the act of 14th June 1960.). This
prescription provides for the participation of social organisations in
administrative proceeding, namely according to it:
§
1 Social organisation, in cases concerning other persons, may demand:
initiation of proceedings, admission of these organisations to the
proceedings, where this is justified by statutory objectives of the
organisation and where the interest of the society so requires.
§
2 State administration authorities, having found the demand of the
social organisation justified, shall initiate the proceeding ex officio
or shall admit the organisation thereto. The organisation may appeal
against the refusal to initiate the proceedings or to admit to the
proceedings.
§ 3 Social organisations may participate in the proceedings with the rights of a party.
The
Voivode claimed also that the organisation may not be recognised as a
party on the ground of art. 32 and 33 of the Law on the Environmental
Protection (the act of Parliament from 27 April 2001). According to art.
53 of this Law the ecological organisation may take part in proceeding
concerning a building permit only on the condition that there is the
obligation of drawing up a report on an environmental impact of an
undertaking. However, investment consisting in a rebuilding of a street
with road infrastructure was not mentioned in the regulation of the
Council of Ministers from 9 November 2004 regarding defining kinds of
undertakings, which may significantly influence on environment and
detailed conditionalities connected with qualification the undertaking
for preparing the report on the environmental impact.
The
organisation lodged the complaint against this decision to the
Voivodship Administrative Court in Warsaw. One of the main charges of
the complaint was the violation of art. 6 and 9 of the Aarhus
Convention. The complainant pleads that the specific provision of Polish
national law, which limit a circle of parties only to some subjects,
must be identified as contrary to the Convention. In addition the
complainant expressed the opinion that this regulation confers on the
non-governmental organisation the right to be participant of each
proceeding, which refers the environment. The organisation paid
attention on the art. 91 of the Constitution of the Republic of Poland.
According to this prescription:
1.
After promulgation thereof in the Journal of Laws of the Republic of
Poland (Dziennik Ustaw), a ratified international agreement shall
constitute part of the domestic legal order and shall be applied
directly, unless its application depends on the enactment of a statute.
2.
An international agreement ratified upon prior consent granted by
statute shall have precedence over statutes if such an agreement cannot
be reconciled with the provisions of such statutes.
3. If an agreement, ratified by the Republic of Poland, establishing an international organization so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.
Referring to the complaint the Administrative Court at the beginning
reminded that the range of its control was limited to the review of the
decision of the Mazovian Voivode and was performed from the point of
view of conformity with law (art. 1 of the act of 25th July – Law on the
system of administrative courts).
Afterwards
the court also agreed with the opinion that in the light of Polish law
the organisation was banned of the status of the party of the proceeding
in the case. However, the court did not comply with the allegation that
the regulation of the Aarhus Convention conferred this right on
organisation, unindependently of Polish law. Namely the convention
cannot be regarded as an agreement (international treaty), which may be
applied directly (that is without the necessity of amendments in the
legal system of the state, which ratified this convention) on the base
of art. 91 of the Constitution, although, naturally, it must be regarded
as a part of Polish law. The court paid attention to the way the
prescriptions of the Convention were formulated, evoking art. 1, art. 3
point 1 and 4, art. 6 point 11 and art. 9 of the Convention. The court
pointed out few expressions, which occur in these prescriptions:
“each Party shall guarantee
the rights of access to information, public participation in
decision-making, and access to justice in environmental matters in
accordance with the provisions of this Convention” (art. 1),
“each Party shall take the necessary legislative, regulatory and other measures,
including measures to achieve compatibility between the provisions
implementing the information, public participation and access-to-justice
provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention” (art. 3 point 1),
“each Party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection and ensure that its national legal system is consistent with this obligation.” (art. 3 point 4)
“each
Party shall, within the framework of its national law, apply, to the
extent feasible and appropriate, provisions of this article to decisions on whether to permit the deliberate release of genetically modified organisms into the environment” (art. 6 point 11)
“each Party shall, within the framework of its national legislation, ensure that
any person who considers that his or her request for information under
article 4 has been ignored, wrongfully refused, whether in part or in
full, inadequately answered, or otherwise not dealt with in accordance
with the provisions of that article, has access to a review procedure
before a court of law or another independent and impartial body
established by law” (art. 9 point 1).
In
a result the court came to the conclusion that the regulation of the
Convention cannot be applied directly, but only obliged the authority of
the state, which ratified this agreement, to necessary action and to
legislating the law, realising the norms provided in the Convention. To
recapitulate it, the Convention is not a legal basis for recognition
(declaration) the organisation as a party of proceeding.
* The case was solved by Voivod Administrative Court in Warsaw (Warszawa) in verdict of 10th April 2006 (case number VII Sa/Wa 16/2006).