Transcript Access to Justice in DK

Access to Justice in DK
Implementation of the Aarhus Convention in Denmark
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Ratified on the 29th September 2000
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Costs of implementation – 6 man-years!
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The implementation of the Convention resulted in amendments to existing
legislation
– more than 15 individual acts were revised (e.g. broadening legal standing for
NGOs)
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– new legislation adopted (Environmental Information Act)
Environment and Nature Protection legislation is part of public law
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The normal administrative recourse path would apply in case legislation does not set
forth specific rules for complaints/appeals
Access to Justice in DK
Specific Administrative Review Bodies inaugurated in legislation
– The Environment Appeal Board (est. 1973)
• Environment Protection Act
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(IPPC-permit, Waste regulation, Protection of water bodies and soil)
Chemical Substances Act
Contaminated Soil Act
Marine Environment Protection Act
GMO Act
Water Supply Act
Environmental Information Act
– Composition – One legal chairman, two designated experts (one from a list
appointed by the Federation of Industrialists/Agriculture – and one from a list
appointed by the Minister for Environment
– Nature of review performed by appeal board
• Technical (e.g. is it wise and sufficiently justified to grant permit ?)
• Legal (have procedures been complied with?)
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Access to Justice in DK
– The Nature Appeal Board (est. 1992)
• Planning Act
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Nature Protection Act
Raw Materials Act
Forest Act
Telecommunications Infrastructure Act
Summerhouses Act
– Composition – One legal chairman, two Supreme Court Judges, one member
appointed from each of the political parties on Parliaments Committee of
Public Finances (7 in all)
– Nature of review performed by appeal board:
• Legal (have procedures been complied with?)
– In few instances defined in legislation – also substantial review
– A fee was introduced in spring 2004 for certain complaints – appr. 70 EUR
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Access to Justice in DK
Common features of both Appeal Boards
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The activities of the boards are governed by Administrative Law principles
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Complaint cases must be enlightened by the officers employed in the boards
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The discretion of the boards does not cover decisions taken by the Minister
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The decisions of the boards may be subjected to judicial review in courts
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There are quite extensive experiences in the boards
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The Environment Appeal Board handles up to 100 cases per year
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The Nature Appeal Board handles up to 2000 cases per year
The comparative study carried out for the EU Commission suggests that the activities of
the Appeal Boards does in fact have a relieving effect on the number of environmental
cases litigated in ordinary courts
Access to Justice in DK
Other instruments available for complaint
The Ombudsman
Limitations
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In cases where the public authority have acted in contravention with prevailing legislation
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On the basis of an assessment by the Ombudsman that this is an important case
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The Ombudsman may decide to take up a case on his own initiative
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The Ombudsman can only express his criticism against any deficiencies found during his
investigation of a case
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Main fundament is the Administrative Procedures Act, Basic Principles/Codes of Conduct/Best
Practice of the Execution of Public Office
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however, his criticism is always taken seriously – and has in 1993 lead to the fall of Government
The result of a complaint is - if complainant is given right – that the administrative
procedure is started from the beginning – once more
Access to Justice in DK
Judicial Review Bodies
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Ordinary Courts
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There is no division of judicial review in Denmark between civil and administrative courts
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According to Constitution (section 63) courts are in general competent to review any
decision and/or behaviour of public authorities
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In principle a two-instance review system
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In rare cases a third instance appeal is allowed – only upon approval from a designated
board (Procesbevillingsnævnet)
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Basic principles
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Looser pays principle
Parties must undertake all necessary preparations - e.g. enlighten the case
Decision of court is compelling on all parties
Access to Justice in DK
Procedures Related to Access to Information Requests
Anyone who has been denied access to environmental information have the right to
appeal
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Complaints often directed to the Ombudsman
Complaints may be derived from different legislations – and different positions
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A general interest expressed
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The Environmental Information Act
The Act on Access to Information held in Public Registries
The interest of a party in a case
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The Administrative Procedures Act
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(when a complaint has been launched the status of being a party is convened to the complainant)
Access to Justice in DK
Procedures Related to Public Participation
– Rules on public participation differ from act to act
Administrative review
– Examples of procedures
• Land use planning (regional, municipality plans),
• EIA-procedures (linked to regional planning), and
• IPPC-permit procedures
– Who has standing (individuals)
• Planning procedures gives access to anyone (defined by the geographical scope of
the plan)
• Permit procedures gives access to the specific and individual interest
– NGOs right to appeal
• If within their scope of activities, and/or
• If an NGO have required to be informed of specified generic decisions
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Access to Justice in DK
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Preliminary injunctive relief in administrative review–
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conditions for granting e.g. planning decisions
1. Assessment of the likeliness that the action is gross negligent in the light of legal requirements
versus
2. The risk that exploitation of the decision will endanger the complainants claim for re-installation
of justice
Judicial review
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Standing
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Individuals – with a specific and individual interest in the case matter
NGO’s – when within their scope of activities, and an assessment of their ability to be a
part in court proceedings
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Preliminary Injunctive relief in judicial review
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formalised structure, and
bye-laws defining the scope of activities
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Conditions for granting
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The need of public authority not to tolerate any delay of their decision
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The nature and extension of damages the complainant must suffer as well as an assessment of
whether an injunction is considered a justified mean in the light of the alleged infringement
Access to Justice in DK
Problems in existing Access to Justice vis-à-vis the Aarhus Convention
Procedures Related to Acts and Omissions of Acts by Public Authorities
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Enforcement of law is considered the public authority’s monopoly – therefore not
directly open to citizens
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Access to legal remedies is only indirect – it is left to the discretion of the enforcement
authorities to decide whether they want to act
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Prevailing legislation often lacks the necessary provisions as a fundament for any
enforcement activities
Extensive use of preclusion deadlines
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They are in conflict with the basic right in Constitution to call for judicial review
The introduction of a complaint fee at the Nature Appeal Board
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