Transcript ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS IN THE SOUTH EAST EUROPEAN REGION Preliminary Findings dr.

ACCESS TO JUSTICE
IN ENVIRONMENTAL MATTERS
IN THE SOUTH EAST EUROPEAN
REGION
Preliminary Findings
dr. Csaba Kiss (EMLA)
Expert Meeting, 24 February 2014, Geneva (CH)
• 6 + 1 studies on the implementation of
Art. 9 of the Aarhus Convention in the SEE
Region
• UNECE Aarhus Convention Task Force on
Access to Justice
• REC, UNECE, OSCE ENVSEC
• 6 + 1 national experts + 1 consultant
• Presentation at A2J TF meeting (February
2014) and at MOP5 (June 2014)
Introduction
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Questionnaire finalized 2013 summer
National expert input 2013 fall
National consultations 2013 winter
Analytical summary 2014 February
Discussion
Finalization
Presentation
Methodology
• Legislation
• Administration
• Administrative decision-making
(remedies)
• Judiciary
• Access to information cases
• Public participation cases (standing)
• Practical features of access to justice
Structure of
Questionnaire
• SEE Region in the center of interest for
decades
• Major driving force: EU approximation
• Conservative regulatory models
• Some creative solutions with no systemic
approach
• Painful lack of case law in all the Region
Findings: Context
• Modern Constitutions
• Full „Norm Pyramids” in environmental
issues (major Act of Parliament +
subordinate legislation)
• Large number of laws on specific topics
• Aarhus Convention ratified (except 1
case)
Findings: Legislation
• Ministries of the Environment everywhere
(local name and competence variations)
• Environmental agencies (usually 2 layers:
regional and national)
• Public prosecutors with mostly criminal
law competences
• Ombudspersons for reviewing
maladministration
Findings: Administration
• General Administrative Procedure Acts
(no environmental procedure act)
• 2 level public authorities with an
opportunity to appeal
• Public authorities for inspection and
enforcement
• No general public information access to
2nd instance administrative decisions
• Members of public can report
environmental problems
Findings: Administrative
decision-making
• Elaborate judicial infrastructures
• Basic, Regional, Supreme Courts, special
Administrative Courts, Constitutional
Courts
• Legally independent courts
• No lay person participation mostly
• No harmonized system of public
information access to court decisions
Findings: Judiciary
• Freedom of Information Acts but no
access to environmental information laws
• Remedy quoted in the refusal of
information
• Administrative appeal then judicial
remedy
• Non-responsive public authorities and
lack of legal knowledge in the public
Findings: Access to
Information Cases
• Legal standing based on traditional affectedness
doctrine (rights or legitimate interests)
• Exhaustion of administrative remedy as
precondition for judicial remedy
• Art 9.3: partly affectedness based and partly not
in the Region, in cases true actio popularis
• Appeals have automatic suspensive effect
• Filing lawsuit has no automatic suspensive effect
but courts can be asked for injunction
• Mediation: laws in place but no practice
Findings: Public
Participation Cases
• Administrative appeal within 15 or 30
days
• Court procedure within 30 or 60 days
• No time limits for judicial decision-making
• Time limits mostly not sufficient or
effective
Findings: Timeliness
• Administrative appeal non-expensive
• Court fees non-expensive except when
proportionate to value of the case
• Payment exemption based on personal
status, mostly not for NGOs
• Loser Pays Principle
• Free negotiation with attorney + Bar
Association Tariffs as minimum
• High costs: evidence, bonds
• No legal aid in 3 out of 7, not for
environmental cases in the Region
Findings: Costs
• Lack of
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case law
public willingness to sue
public knowledge of the law
legal aid
clear criteria for injunctions
knowledge by the courts of environmental
issues and environmental laws
Findings: Effectiveness
• Similar problems throughout the Region
partly due to common legal heritage
• Aarhus Convention: not sure on its direct
implementation or what impact it could
make
• Need for lawyers in the Region doing
environmental cases
• Common problems – common solution
probably as part of a large-scale regional
project or initiative
Findings of the
Expert Meeting
•Thank You!
UNECE, REC, OSCE, EMLA