Transcript Article 9, paras.1 and 2 of the Aarhus Convention: overview “IMPLEMENTING THE AARHUS CONVENTION TODAY: PAVING THE WAY TO A BETTER ENVIRONMENT AND.

Article 9, paras.1 and 2 of the
Aarhus Convention: overview
“IMPLEMENTING THE AARHUS CONVENTION TODAY: PAVING THE WAY TO A
BETTER ENVIRONMENT AND GOVERNANCE TOMORROW”
SUBREGIONAL MEETING
Almaty, Rahat Palace Almaty
Kazakhstan
22-23 May 2012
Elena Laevskaya and Dmytro Skrylnikov
Overview
1. What are cases the Article 9, paras 1 and 2
are applied?
2. General approaches
3. Article 9, para. 1
4. Article 9, para. 2
What are cases the Article 9, paras 1
and 2 are applied?
• Article 9, para 1 – in case of violation of right
on information (applicable to the Article 4 of
the Aarhus Convention)
• Article 9, para 2 – in case of violation of right
on participation in decision-making on specific
activity (applicable to the Article 6 of the
Aarhus Convention and other relevant
provisions of the Convention)
General approaches
• Access to justice – access to the court or other body
• Requirements established with regard to “another” body
(independence, impartiality and establishment by law)
• Definitions (the public, public concerned, the public having interest,
the public authority) – article 2 of the Aarhus Convention
• Procedures must ensure adequate and effective remedies (including
the injunctive relief) (Article 9, para 4, of the Aarhus Convention)
• Procedures must be fair, impartial, timely and not linked with
extremely high costs (Article 9, para 4, of the Aarhus Convention)
• Decisions shall be given in writing; the public has access to
decisions of courts and whenever possible of other bodies (Article
9, para 4, of the Aarhus Convention)
Article 9, para 1
The Party shall, within the framework of its national legislation,
ensure review procedures related to
• Requests on access to information based on article 4 AC
• Grounds for appeal: failure to satisfy the request for access to
environmental information
• Form and types of violation: request has been ignored,
wrongfully refused in part or in full, inadequate satisfaction or
other (this request has not been dealt in accordance with the
provisions of Article 4 AC)
Article 9, para 1
Article 4 of the Aarhus Convention (AC) defines: deadline
to respond to the request on access to information
(article 4, para 2, AC), form of the response (article 4,
para 1 b) AC), reasons of rejection of the request (Article
4, paras 3 and 4 AC)
• Article 9, para 1, provides the procedure to consider any
aspects of request on provision of information and
appropriate response based on Article 4 AC.
Complainant could have received reply on the request and
could have even received the information, however,
article 9, para 1, AC might be still applicable
Article 9 para 1
• Applicant: any person requested the public
authority
to
provide
environmental
information in accordance with article 4 AC
- Access to information and to justice must be
ensured to the public including the foreign
citizens and foreign organizations
Article 9 para 1 статьи 9
• jurisdiction: court of law or other body
other body
- «independent and impartial body established by
law»
- Fulfills a quasi-judicial function; decisions must be
mandatory for the body holding the information,
independent of influence of other persons in
decision-making (recommendations of the
ombudsmen are insufficient for article 9, para 1 AC)
Article 9, para 1
• Procedure must be prompt, established by
law and free of charge or payment must be
minimum
- «re-consideration» means that the same
authority, which made a decision, re-considers
it. Re-consideration does not withdraw right
of the individual to apply to the court or
“other body”
Article 9 para 9
• Decision must be approved (by the court or
“other body”):
- final
- Having mandatory nature for the public
authority
- Reasons of denial in providing information
must be described in written form
Practice of the AC Compliance Committee–
Article 9, para 1
• The courts do not possess clear guidance clear guidance as to the
meaning of an expeditious procedure in cases related to access to
information (Kazakhstan АССС/С/2004/1, para 21)
• Lack of provisions on standing in the national procedure law in
cases related to access to information (same decision, para 23)
• Lengthy review procedure and denial of standing to the nongovernmental organization in a lawsuit on access to environmental
information (same decision, para 26)
• If a public agency has the possibility not to comply with a final
decision of a court of law under article 9, paragraph 1, of the
Convention, then doubts arise as to the binding nature of the
decisions of the courts within a given legal system (Republic of
Moldova АССС/С/2008/30, para 35)
Article 9 para 2
• Each Party shall, within the framework of its national
legislation, ensure review procedures to challenge
the substantive and procedural legality of any
decision, act or omission subject to the provisions
of article 6, and, where so provided for under
national laws and without prejudice to Article 9, para
3, of other related provisions of the Aarhus
Convention
Article 9, para 2
• applicant: «members of the public concerned»,
а) showing sufficient interest (based on the
national legislation but considering article 2,
para. 5 AC - «NGOs meeting any requirements
under national law hall be deemed to have
sufficient interest»),
Or, alternatively,
• b) Maintaining impairment of a right, where the
administrative procedural law of a Party requires
this as a precondition
Article 9, para 2
• Subject of dispute: substantive or procedural
legality of any decision, act or omission
subject to Article 6 of AC and other relevant
provisions of AC
• Jurisdiction: where to be appealed and
procedure (court of law and/or «other
body»independent,
impartial
and
established by law)
Article 9, para 2
• The possibility of a preliminary review procedure
(where it is provided by national law)
- The Party may envisage a preliminary review
procedure before an administrative authority.
System of administrative review procedure does
not aim at excluding the possibility to recourse to
judicial review procedure; however, in many
cases it is able to address this issue promptly and
avoid the necessity to address the court
Practice of the Compliance Committee
– Article 9, para 2
• Limited standing of the local NGO in judicial review
procedure to challenge decision-making under Article 6 AC
(when decision is adopted in other region) (Turkmenistan
АССС/С/2004/5, para 19)
• Limited standing of NGOs («having a sufficient interest» is
interpreted only by NGOs having objectives to protect
environment in the charter) (Armenia АССС/С/2009/43,
para 48, 81)
• Decisions related to types of activity under Article 6 of AC
in the form of a legislative act (resolution of the
Government) cannot be challenged by the public in the
court (but only in the Constitution Court, where the citizens
are not allowed to apply directly) (Armenia АССС/С/2004/8,
para 35)
THANK YOU FOR ATTENTION