Handbook on Access to Justice under the Aarhus Convention · 2011-06-01 · Part III: Case Studies 83 Case study methodology 85 Table of cases 87 Cases 91 Part III: Endnotes 215 Appendices

Handbook on Access to Justice under the Aarhus Convention

Edited by Stephen Stec

SZENTENDRE, HUNGARYMARCH 2003

Ministry of the Environment Republic of Estonia

THE REGIONAL ENVIRONMENTAL CENTERfor Central and Eastern Europe

About the REC

The Regional Environmental Center for Central and Eastern Europe (REC) is a non-partisan, non-advocacy, not-for-profit organisation with a mission to assist in solving environmental problems in Central and Eastern Europe (CEE). TheCenter fulfils this mission by encouraging cooperation among non-governmental organisations, governments, businessesand other environmental stakeholders, by supporting the free exchange of information and by promoting publicparticipation in environmental decision-making.

The REC was established in 1990 by the United States, the European Commission and Hungary. Today, the REC is legallybased on a Charter signed by the governments of 27 countries and the European Commission, and on an InternationalAgreement with the Government of Hungary. The REC has its headquarters in Szentendre, Hungary, and local offices in eachof its 15 beneficiary CEE countries which are: Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Estonia,Hungary, Latvia, Lithuania, FYR Macedonia, Poland, Romania, Serbia and Montenegro, Slovakia and Slovenia.

Recent donors are the European Commission and the governments of Albania, Belgium, Bosnia and Herzegovina,Bulgaria, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Italy, Japan, Latvia, Lithuania, theNetherlands, Poland, Serbia and Montenegro, Slovenia, Sweden, Switzerland, the United Kingdom and the United States,as well as other inter-governmental and private institutions.

Disclaimer: This handbook has been produced for the use of the member states of the United Nations EconomicCommission for Europe (UNECE). Its contents express the personal opinions of the authors only, and do not represent theofficial position of any country or official body. Nor do the designations employed and the presentation of the materialin this publication imply the expression of any opinion whatsoever concerning the legal status of any country, territory,city or area or of its authorities or concerning the delimitation of its frontiers or boundaries.

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Keyword index of cases 7

Explanatory note 11

Preface — Rita Annus, Chairperson of the Task Force on Access to Justice 13

Acknowledgements 15

Introduction — Stephen Stec 17

Part I: Specific Access to Justice Issues Under the Aarhus Convention 21

Chapter 1: Access to justice in cases involving access to environmental information — Remo Savoia and Dmitry Skrylnikov 23

Failure to respond to an information request 23Incomplete response 24Challenges to claims of exemption 24

Chapter 2: Access to justice in cases involving public participation in decision-making — Svitlana Kravchenko, Dmitry Skrylnikov and John E. Bonine 27

Judicial challenges to procedural illegality 27Judicial challenges to substantive illegality 30

Chapter 3: The public’s right to enforce environmental law — John E. Bonine 31

What can be reviewed? Contraventions of national law relating tothe environment 31What can trigger the review procedure? Acts and omissions, private and public 31Who can ask for the review? Standing 31

Chapter 4: Administrative, judicial and other means for access to justice — Remo Savoia 39

Administrative versus judicial appeal 39

Chapter 5: Administration of justice and due process — Marianna Bolshakova 43

Judicial independence 43Corruption 43Knowledge and capacity 44Public support 44Legal certainty 45Right to counsel and presumption of innocence 45Judicial consistency and use of precedent 45Advisory opinions 45Timeliness of procedures 46Protection of persons exercising their rights 47Further obstacles 47

T A B L E O F C O N T E N T S

H A N D B O O K O N A C C E S S T O J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N 3

Chapter 6: Remedies — Brian Rohan and David Jacobstein 49

Powers of judges and administrators 49Enforcement of judgements 50Injunctions as a remedy under the Aarhus Convention 50Damages 54

Chapter 7: Financial and other barriers — Lynn Sferrazza 55

Court fees 55Costs of experts 55Legal aid 56Fee shifting 56Aggregating small claims 58Restrictions on NGOs 58Taxation 58

Chapter 8: Strategic lawsuits against public participation — Jennifer Gleason 59

What are SLAPPs? 59SLAPPs identified in case studies 59Responding to SLAPPs – SLAPPbacks 59Legislative responses to SLAPPs 60Protecting public participation 60

Chapter 9: Conclusions and recommendations — Stephen Stec 61

Legal/administrative issues 61Standing issues 62Adequacy of remedies 62Financial issues 62Systemic and capacity issues 63

Preface, Explanatory note, Introduction and Part I: Endnotes 65

Part II: Related Access to Justice Issues 71

Chapter 1: Rights and duties towards a healthy environment — Stephen Stec 73

The right to a healthy environment in Europe 73Aarhus rights and procedures contributing to the right to ahealthy environment 75

Chapter 2: Environmental human rights protection in the European Court of Human Rights — Andriy Andrusevych 77

Chapter 3: Access to justice on the international level: Citizen enforcement under the North American Agreement on Environmental Cooperation — Andriy Andrusevych 79

Part II Endnotes 81


4 H A N D B O O K O N A C C E S S T O J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N

Part III: Case Studies 83

Case study methodology 85

Table of cases 87

Cases 91

Part III: Endnotes 215

Appendices 219

Appendix A: Report of Tallinn Workshop on Access to Justice in Environmental Matters under the Aarhus Convention 221

Appendix B: Other Cases and Background Materials 229

Appendix C: Citizen Guides Related to Access to Justice 243

Appendix D: Important Contacts 245

Appendix E: Further Reading 251

About the Authors 255


H A N D B O O K O N A C C E S S T O J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N 5

6 H A N D B O O K O N A C C E S S T O J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N

H A N D B O O K O N AC C E S S TO J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N 7

Keyword index of cases

KEYWORD CASE NAME PAGE

Access to information

“The Metal Plant Case”; Hungary Case 2 . . . . . . . . . . . . .151

“The Sarmi Park Case”; Moldova Case 1 . . . . . . . . . . . . . .163

“The Nikitin Case”; Russia Case2 . . . . . . . . . . . . . . . . . . .177

“The Shrinking Park Case”; Russia Case 3 . . . . . . . . . . . . .181

“Ukrainian Right to Know Case”; Ukraine Case 1 . . . . . . .197

“NGO Right to Information Case”; Ukraine Case 2 . . . . . .199

“The Access to Information Case”; Ukraine Case 5 . . . . . .205

Barriers to effective public participation

“The Excessive Fees Case”; Kazakhstan Case 3 . . . . . . . . .157

Enforcement of administrative decisions

“The Silver Plate Case”; Serbia and Montenegro Case 1 . .185

“The Zvesda Café Case”; Serbia and Montenegro Case 2 . .187

Enforcement of law

“Waste in the Caspian Case”; Kazakhstan Case 2 . . . . . . .155

Extra judicial procedure

“The Extra Judicial Proceeding Case”; Lithuania Case 1 . . .159

Fair, equitable and timely procedure

“The Nikitin Case”; Russia Case 2 . . . . . . . . . . . . . . . . . .177

Keyword Index

K E Y W O R D I N D E X O F C A S E S

8 H A N D B O O K O N AC C E S S TO J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N

Financial and other barriers

“Defense of National Park Case”; Georgia Case 1 . . . . . . . .123

“The Vake Park Case”; Georgia Case 2 . . . . . . . . . . . . . . .127

“The Indispensable’ Pesticides Case”; Netherlands Case 2 . .169

“The Nuclear Files Case”; Spain Case 1 . . . . . . . . . . . . . . .191

“The Aznalcollar Waste Dam Case; Spain Case 2 . . . . . . . . .193

“Agricultural Storage Center Case”; United Kingdom Case 2 . .211

Improper procedure for public participation

“The Pirin Mountain Case”; Bulgaria Case 1 . . . . . . . . . . . .105

“The Elshitza Case”; Bulgaria Case 2 . . . . . . . . . . . . . . . . . .109

“The Experts’ Documents Case”; Germany Case 2 . . . . . . .135

“The Petrol Plant Case”; Kazakhstan Case 1 . . . . . . . . . . . . .153

“The Highway & Housing Case”; Poland Case 1 . . . . . . . . .173

“The Water Works: A Case in Progress”; Russia Case 1 . . . . .175

“The Cacak Case”; Serbia and Montenegro Case 3 . . . . . . . .189

“ The Troublesome Cafeteria Case”; Ukraine Case 4 . . . . . . .203

Injunctive relief

“The Elshitza Case”; Bulgaria Case 2 . . . . . . . . . . . . . . . . . .109

“Waste Fuel Plant Case”; Germany Case 1 . . . . . . . . . . . . .131

“The Nature Reserve Case”; Germany Case 4 . . . . . . . . . . .141

“The Baltic Sea Motorway Case”; Germany Case 5 . . . . . . .143

“ The Elbe Case”; Germany Case 6 . . . . . . . . . . . . . . . . . . .145

“The Sarmi Park Case”; Moldova Case 1 . . . . . . . . . . . . . . .163


“The Shrinking Park Case”; Russia Case 3 . . . . . . . . . . . . . .181

“The Lappel Bank Case”; United Kingdom Case 1 . . . . . . . .207

Insufficient information for effective public participation

“The Telephone Case”; United States Case 1 . . . . . . . . . . . .213

Lack of judicial review

“The Bohemian Highway case”; Czech Republic Case 3 . . .119

Keyword Index

K E Y W O R D I N D E X O F C A S E S


Keyword Index

Legal standing

“Enns River Road”; Austria Case 1 . . . . . . . . . . . . . . . . . . .93

Representative Standing; Belgium Case 1 . . . . . . . . . . . . . .97

Special Procedure; Belgium Case 2 . . . . . . . . . . . . . . . . .101

Organisational Mission Standing; Belgium Case 3 . . . . . . .103

“Sumava National Park”; Czech Republic Case 1 . . . . . . .113

“The Gravel Mining Case”; Czech Republic Case 2 . . . . . .117

“The Vake Park Case”; Georgia Case 2 . . . . . . . . . . . . . . .127

“Waste Fuel Plant Case”; Germany Case 1 . . . . . . . . . . . .131

“The Windmill Case”; Germany Case 3 . . . . . . . . . . . . . .135

“The Nature Reserve Case”; Germany Case 4 . . . . . . . . . .141

“The Baltic Sea Motorway Case”; Germany Case 5 . . . . . .143

“ The Elbe Case”; Germany Case 6 . . . . . . . . . . . . . . . . . .145

“The Balaton Highway Case”; Hungary Case 1 . . . . . . . . .147

“Waste in the Caspian Case”; Kazakhstan Case 2 . . . . . . .155

“The Oily Bird Case”; Netherlands Case 1 . . . . . . . . . . . .167


“The Shrinking Park Case”; Russia Case 3 . . . . . . . . . . . . .181

“Pyrogovo Villagers Case”; Ukraine Case 3 . . . . . . . . . . . .201

“The Lappel Bank Case”; United Kingdom Case 1 . . . . . . .207

Remedies

“The Victory Park Case”; Armenia Case 1 . . . . . . . . . . . . . .91

“The Water Works: A Case in Progress”; Russia Case 1 . . .175

“Pyrogovo Villagers Case”; Ukraine Case 3 . . . . . . . . . . . .201

“ The Troublesome Cafeteria Case”; Ukraine Case 4 . . . . .203

Right to public participation

“The Victory Park Case”; Armenia Case 1 . . . . . . . . . . . . . .91

“The Sarmi Park Case”; Moldova Case 1 . . . . . . . . . . . . . .163

SLAPPs

“The Excessive Fees Case”; Kazakhstan Case 3 . . . . . . . . .157

Sufficient interest

“Defense of National Park Case”; Georgia Case 1 . . . . . . .123



Explanatory note

The Handbook on Access to Justice under the AarhusConvention was developed by the Regional EnvironmentalCenter for Central and Eastern Europe (REC) with the par-ticipation of the following partner organisations: theAmerican Bar Association/Central European and EurasianLaw Initiative (ABA/CEELI), European ECO Forum, theEnvironmental Law Association of Central and EasternEurope and the Newly Independent States (GutaAssociation) and the Environmental Law AllianceWorldwide (ELAW). Project funding was provided by thegovernment of the United Kingdom. Additional financialsupport, including the translation of a first draft of thehandbook into Russian, was provided by ABA/CEELI. Aproject Steering Committee was formed to support thehandbook’s development. Steering Committee member-ship was open to all UNECE member states, as well as rep-resentatives of partner organisations, the REC and theUNECE Secretariat. The countries that participated in theSteering Committee included Bulgaria, Denmark, Estonia,Finland, the Netherlands and the United Kingdom.

The development of the handbook was designed witha practical approach in mind, making use of actual cases asfar as possible. It drew upon the experience of a goodpractice handbook on Public Participation in MakingLocal Environmental Decisions developed during a work-shop in Newcastle, UK (December 1999). Cases were gen-erated in several ways. Most were developed afterannouncements sent through existing networks, primarilythe network of government Aarhus focal points, and net-works and databases of public interest environmentallawyers. A number of cases from Central Europe and the

EECCA region were generated through a Sub-RegionalCase Study Development Meeting, held in Lviv, Ukraine,June 4-5, 2001. Finally, several cases were identifiedthrough research by the authors. The information in thecase studies is current as of July 2002. Further details con-cerning the case studies can be found at the beginning ofPart III of the handbook.

The handbook also contains analytical contributions(Parts I and II). The framework for these parts was devel-oped through numerous consultations involving theSteering Committee. An important reference for the frame-work was the report on Complaint Procedures and Accessto Justice for Citizens and NGOs in the Field of theEnvironment within the European Union, discussed at theEU-IMPEL Workshop held in the Hague, the Netherlands(May 2000).2 While not covering all aspects of access to jus-tice under the Aarhus Convention, the analytical parts treatsome of the more significant issues, as identified during theHague workshop, the Sub-Regional Case StudyDevelopment Meeting, and in other relevant consultations.Parts of the text draw from The Aarhus Convention: AnImplementation Guide (UN: Geneva and New York, 2000).Further work certainly needs to be done. It is our hope thatthis document will contribute to future collaboration todevelop the state of the art of access to justice in environ-mental matters in the UNECE region.

Finally, this handbook is meant to expand and evolveover time. It will be included on the official websites of theAarhus Convention, <www.unece.org/env/pp/a.to.j.htm>,and of the REC, <www.rec.org>, and additional cases andupdates will be posted periodically.



It has given me great pleasure to lead, on behalf ofEstonia, the Task Force on Access to Justice that was set upby the UNECE Convention on Access to Information,Public Participation in Decision-making and Access toJustice in Environmental Matters (the Aarhus Convention)at its Second Meeting of Signatories in Croatia in 2000.

It was agreed that the Task Force should focus on prac-tical implementation means such as pilot projects andmeasures to remove financial obstacles to those seekingaccess to justice, as well as considerations of assistancemechanisms, rather than to engage in efforts to extend orrefine the legal framework provided by the Convention. Itshould gather information on good practices and provide aforum for the exchange of experience. An effort should bemade to provide models, concrete solutions and problem-solving approaches to the implementation of article 9. Itwas agreed that representatives of ministries of Justiceshould be invited to participate.1

The Task Force convened a number of fairly informaldiscussions, including two in Geneva. The RegionalEnvironmental Center for Central and Eastern Europe(REC) was commissioned to produce this handbook, andbegan by gathering case studies that shed light on the waysin which the provisions of article 9 could be implemented,and on some of the potential pitfalls and obstacles thathave been encountered. The REC was assisted by supportfrom the European ECO Forum, the American BarAssociation/Central European and Eurasian Law Initiative(ABA/CEELI), the Environmental Law Association ofCentral and Eastern Europe and the Newly IndependentStates (Guta Association) and the Environmental LawAlliance Worldwide (ELAW). A preliminary meeting washeld in Lviv, Ukraine, in June 2001 to review the collectionof material.

Estonia hosted a workshop in Tallinn in September2001, posing a series of questions that emerged from earli-er discussions as a basis for this work:

• What might constitute an “independent and impartialbody established by law?”

• What is “sufficient interest” and how does this relateto the standing and status of non-governmentalorganisations (NGOs) and other community neigh-bourhood groups?

• What are adequate and effective remedies?

• How can injunctive relief be used to assist with effec-tive remedies?

• How can appropriate financial assistance be providedin an effective way?

• What other barriers to justice have been identified andhow have they been overcome?

The workshop was a great success. It was attended by52 participants, acting in their personal capacity, from awide range of government institutions and NGOs. Its aimwas to focus on good practice and provide a forum for theexchange of practical experience.

Discussions took place in groups, each facilitated byone of the participants, and the conclusions of the groupswere broken down according to articles of the AarhusConvention. Categories used were: procedures; remedies;review bodies and other bodies; overcoming financial bar-riers; overcoming other barriers; and other issues notaddressed in other sessions.

It became clear during the course of discussions thatbecause of the wide geographical range of the UnitedNations, the contexts in which access to justice under theAarhus Convention needs to operate are diverse in terms oflegal and democratic traditions, as well as social, culturaland economic conditions. This diversity needs to beremembered particularly when reading the case studies inPart III of this handbook. An attempt was made to ensurethat different practices are adequately described through-out, but it is accepted that these case studies do not coverall good practices on environmental justice.

Throughout all our discussions it was clear that whatwas needed was practical guidance and support rather

PrefaceRita Annus,

Chairperson of the Task Force on Access to Justice

than academic or theoretical studies. Inevitably perhaps,participants pressed for more things to be done than waspossible in the time available. We were asked, for exam-ple, to make efforts to ensure that all good practices iden-tified during the course of discussions were adequatelydescribed in the final version of the handbook. Theseincluded some excellent examples of review bodies, time-frames, standing, citizen enforcement powers, injunctiveand interim relief, damages, legal aid schemes, waivingfees and financial certainty. Following these up willundoubtedly be valuable and provide parties to theConvention with a wealth of the best concrete solutions toa range of the most practical problems encountered whenimplementing article 9 of the Convention. The workshopalso concluded that, while this handbook would be main-ly addressed to government officials and others involved inthe implementation of the Convention, it would be impor-tant for future Task Force activities to assess and addressthe needs of other target groups such as the public, lawyersand judges.

I am very pleased to present this Handbook on Accessto Justice under the Aarhus Convention. It does not claimto be the final and definitive word on all aspects of theimplementation of the justice provisions in theConvention. However, I hope that this is a good start andthat its focus on real cases, real problems and real solutionswill make it an excellent resource for parties to theConvention and others seeking to meet the requirementsof article 9.

The handbook is organised as follows:

• Part I: Analytical chapters elaborating specific issues ofaccess to justice under the Aarhus Convention as dis-cussed in Tallinn and illustrated by case studies in Part III.

• Part II: Some other issues related to access to justice inthe context of the Aarhus Convention.

• Part III: Case studies chosen to illustrate issues thatarise in implementing article 9 of the Convention.

I would like to conclude by thanking those who havehelped to make the Estonian leadership of the Access toJustice Task Force a success, and to all those who havecontributed so generously to the handbook.

I also want to take this opportunity to welcome thegovernment of Belgium, which now leads the new Accessto Justice Task Force established during the First Meetingof Parties to the Aarhus Convention in Lucca in October2002. I wish them every success with this continuing work.

Rita AnnusDirector-General, Legal Department

Ministry of EnvironmentEstonia

P R E FAC E


Rita Annus, Jayne Boys, Sofie Flensborg, Cairo Robb,Vera Rodenhoff and Rachel Solomon-Williams providedvaluable comments on the text. Merab Barbakadze, OlgaRazbash, Joost Rutteman and Jeffrey Thomas gave valuableinput to Part I, chapters 6 and 7. Linda Nowlan and ChrisTollefson provided information on strategic lawsuits againstpublic participation (SLAPPs) in Canada. Kate Cook andPeter Roderick supplied background materials relating toUK cases. John E. Bonine collected most of the citizenguides in Appendix C. Jeffrey Thomas pre-edited the casestudies. Special thanks are due to the staff at Ecopravo-Lvivfor local organisation of the Sub-regional Case StudyDevelopment Meeting in Lviv, Ukraine, in June 2001.Translators for the Russian edition were Marina Aidova andMarina Lazo. Additional translation was provided by

Natasha Chumachenko, Andriy Kondratyev, TanyaKrivitska, Dmitry Zhdan and Anna Zinchenko. The RECteam was led by Stephen Stec and included MariannaBolshakova, Tsvetelina Borissova, Eniko Horvath, DanaRomanescu, Orsolya Szalasi and Magdolna Toth Nagy.Administrative and technical support was provided byLiljana Antonovska, Tinatin Kvatchantiradze, Balazs Ruzsaand Pavel Steiner. Thanks are due to Steve Graning, SylviaMagyar, Eunice Reyneke and Greg Spencer of the RECCommunications and Publications Department who editedand proofread the text and did the layout. While too numer-ous to mention by name, those who provided materials,facilitated contacts and gave other important forms of sup-port to the handbook project are gratefully acknowledgedfor their key contributions.


Acknowledgements


“Today we may speak just about the general principlesof access to justice in this or that country and comparethe experience of different countries. [O]ne may speakonly about development of the processes of democra-tisation in court practice of countries [in terms of] appli-cation of the principles of the Aarhus Convention [andthe] creation of possibilities.”

(Statement by the Kazakhstan focal point for theAarhus Convention in a note accompanying

the submission of cases.)

This statement summarises the purpose of this hand-book — to look at possibilities in the field of applying theaccess to justice principles of the Aarhus Convention, asexpressed through real cases drawn from the UNECE region.

The approach of this handbook is to use cases to illus-trate the obligations of the Aarhus Convention and howthey might be enforced or upheld through complaints pro-cedures and other means of access to justice. In dealingwith issues such as the rules with respect to broader stand-ing, and the application of those rules in particular circum-stances, it is hoped that parties to the Convention will con-sider different options in the adoption of implementinglegislation and in the development of rules of court andrules of practice of other tribunals and similar bodies. It ishoped that an exchange will be fostered resulting in thedevelopment and broad adoption of best practices in thefield of access to justice in environmental matters in theUNECE region.

The first part of the handbook discusses specific issueswith respect to the implementation of the access to justiceobligations of the Convention, drawing upon, analysingand evaluating the results of the case studies as much aspossible. While an attempt was made to identify case stud-ies dealing with as many of the aspects of access to justicein relation to the Aarhus Convention as possible, not allsuch aspects could be covered by practical case examples.Thus, the analysis also relies upon the authors’ researchand sometimes direct experience.

Case studiesWhereas environmental cases were virtually unheard

of a generation ago, courts and administrative tribunals aretoday increasingly hearing environmental cases. Whilesome may say that more appeals from unsatisfactory deci-sions indicate poorer decision-making, the root causewould rather appear to be simply the large increase inopportunities to access information, participate, and gainaccess to justice. Whether courts, administrative appeals,or other possible access to justice mechanisms are consid-ered, three aspects of access to justice need to be exam-ined. The first is a threshold issue — under what circum-stances does a person have standing to invoke substantiveand procedural guarantees? The second is the question ofwhich specific procedures and remedies should be avail-able once the threshold is crossed. The third is the extentof judicial control through the procedures available, alsoreferred to as the standard of review.

The UNECE region covers many legal traditions. Thosecountries that require subjective rights to be impaired priorto resort to judicial remedies may be reluctant to recognisethe rights of some, for example, environmental organisa-tions. Other countries with more idealistic but less strictlyimplemented legal traditions may have no trouble recog-nising broad concepts of rights and interests. But suchrecognition may result in a less strict application of normsand remedies in a given case. Exchanges of experience onaccess to justice help bring these strands together — on theone hand, extending spheres of recognised rights andinterests into heretofore uncharted territories and, on theother hand, requiring idealistic “rights” to be taken moreseriously. The result is to extend the scope of the law overcitizen-state interaction and to reduce the scope of govern-ment action without criticism and oversight.

Crossing the threshold is just the first step. The proce-dures and remedies available depend on a plethora of cir-cumstantial and legal factors that differ substantially in thevarious countries. The length of proceedings and lack of


IntroductionStephen Stec

information about access to justice are examples. The effec-tiveness of access to justice procedures is heavily influ-enced by the availability of interim measures and the possi-bility to secure the status quo or prevent the continuation ofcertain activities during the proceedings (see also chapter 6on injunctions). Otherwise the environment may be longlost even though the case is won. Perhaps the largest obsta-cles are financial. These include not only the obligation toprovide financial security for procedural costs, but also theprospect of civil lawsuits claiming damages for lossesincurred if projects are halted during the proceedings.

The scope or extent of judicial control also differs great-ly from country to country. This scope can be viewed interms of both breadth and depth of inquiry. Breadth ofinquiry refers to the question of which laws are taken intoconsideration when reviewing the legality of the challengedact. By depth of inquiry, the intensity of judicial review isconsidered in comparison with the margin of discretiongranted to the administrative authorities when making theirdecisions, and the level of detail of facts reviewed.

In practice, some countries like Italy and Germanyhave fairly restrictive conditions regarding standing. Theyrequire the applicant to prove that he or she has anenforceable right to lawful administrative action or toassert that the law he or she invokes is specifically aimedat his or her protection. However, once this hurdle ispassed, the procedures and tools available to protect theenvironment may be very effective and the extent of judi-cial control rather wide. In Germany, for example, thecommencement of administrative review procedures auto-matically has the effect of an order maintaining the statusquo, and the extent of judicial control in both Germanyand Italy is generally very broad. It is often the case thatcountries with a low threshold for standing, such asFrance, where it is sufficient to assert a legal, factual oreven idealistic interest, often have a more limited extent ofjudicial control.3 Still other countries may have broadstanding rules, but financial barriers may lead to few per-sons taking advantage of them. Thus when looking ataccess to justice in different countries it is important not tofocus on one single issue such as standing, but to considerall aspects of each country’s legal system, including cir-cumstantial factors. In doing so, efforts to address barriersto access to justice can be tailored to the specific situationin each country.

These concepts have special relevance in a large part ofthe UNECE region that has gone through a decade of tran-sition from centrally planned economies and information,and social control, to transitional or market economieswith greater pluralism. Inadequacies in the system ofadministrative and judicial review come to the fore quitereadily in environmental protection, due to the higher levelof civic activism. As obstacles are encountered resort isgiven to mechanisms for the administration of justice, anoccurrence that is becoming more frequent. Ultimately, the

call for access to justice shows the interest of the public intrying to protect the environment, preferably but not nec-essarily in partnership with the authorities.

The fact that the elements of standing and judicial con-trol are central to access to justice under the AarhusConvention is further evidence, if any is needed, of theextent to which environmental protection serves as a moti-vation for persons to use the law or to define rights, andhow it helps to promote and uphold the rule of law.Moreover, through resort to the courts, the power andindependence of the judiciary are tested. The focus on jus-tice in the growing body of international environmentallaw is another indication of the role of environmental pro-tection in empowering people and making authoritiesmore accountable. Where citizens fight for environmentaljustice in access to information or the right to take part indecision-making, they increase their ability to make use ofthe same mechanisms for other purposes.

Access to environmental justice is one of the majorissues on the international agenda. The relationship ofaccess to environmental justice and good governance tosustainable development is becoming increasingly appar-ent. While the notion that environmental protection anddevelopment are inseparable has been accepted for sometime,4 the connection between access to environmentaljustice and governance is a relatively new idea. It is furtherevidence of the special characteristics of international envi-ronmental law,5 and its application in other areas ofdomestic and international law, especially in the contextsof human rights, sustainable development and intergener-ational equity.6 Access to justice in national practice andunder the Aarhus Convention will undoubtedly prove tobe major drivers in the development of environmental gov-ernance and the law of sustainable development ondomestic and international levels.

The cases generated for inclusion in this handbookcover a wide range of problems and solutions relating toaccess to justice within the framework of the AarhusConvention. Of course, these cases cannot actually beregarded as examples of access to justice under theConvention, as most of them predate the Convention’scoming into force in October 2001. They deal with com-plaints and disputes arising out of the handling of informa-tion requests (article 9(1)), the substance and procedure ofenvironmental decision-making and other matters (article9(2)), and attempts by members of the public to use vari-ous legal tools to enforce environmental law (article 9(3))(see Keyword index to cases). They also deal with thekinds of matters that might be referred to as administrationof justice — that is, the minimum standards for due processthat are covered by article 9(4), including the availabilityand enforcement of full and effective remedies, reducingcosts and eliminating other financial barriers to access tojustice, and limiting the misuse of legal process. Specificlessons that can be learned from the case studies in con-


I N T R O D U C T I O N

19

nection with these provisions are drawn out in the follow-ing chapters. Part II contains several additional chapters onissues related to access to justice, including the right to ahealthy environment and examples from the practice of theEuropean Court of Human Rights and the North AmericanAgreement on Environmental Cooperation.


H A N D B O O K O N AC C E S S TO J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N


Part ISpecific Access to Justice Issues

Under the Aarhus Convention



According to article 9(1) of the Aarhus Convention:

“Each Party shall, within the framework of its nationallegislation, ensure that any person who considers that hisor her request for information under article 4 has beenignored, wrongfully refused, whether in part or in full,inadequately answered, or otherwise not dealt with inaccordance with the provisions of that article, has accessto a review procedure before a court of law or anotherindependent and impartial body established by law.

In the circumstances where a Party provides for sucha review by a court of law, it shall ensure that such aperson also has access to an expeditious procedureestablished by law that is free of charge or inexpen-sive for reconsideration by a public authority orreview by an independent and impartial body otherthan a court of law.”

Failure to respond to an information request

The failure of a public authority to respond to a requestfor information is common in many countries.7 Denyingaccess to information impacts upon an essential aspect ofparticipatory democracy. When public authorities holdinformation on the environment and do not provide itupon request, they disregard not only the information prin-ciple, but also the participation principle. Lack of access toinformation on environmental matters is a considerableobstacle to effective public participation.

In many cases, after initially denying access to therequested information, public authorities may decide toprovide it “voluntarily” following the initiation of a courtprocedure, but prior to the court’s ruling, perhaps to avoida court judgement going against them. This is illustrated inHungary Case 2 (the Metal Plant Case) where a member ofthe public requested information from a public authorityon emissions data for an enterprise. The Environmental

Inspectorate of Northern Hungary first refused to providethe data on air pollution and noise emissions of this enter-prise on the grounds that the citizen had no right to partic-ipate in any government decisions relating to the enter-prise. The individual in question filed a lawsuit at the localCity Court of Miskolc to oblige the inspectorate to provideaccess to the requested information. During the processthe inspectorate “voluntarily” released a part of therequested data. While a final court judgement was avoid-ed, in the view of one of the authors of the case study, thecase proves that “the group of those who are entitled tohave access to environmental data of a facility is not limit-ed to the group of those who have standing in a particularcase, which is the main idea behind public access to envi-ronmental information.”

Another interesting case demonstrating a successfulresolution where information was voluntarily released isthe Salisbury Bypass Case in the UK (see appendix B). TheDepartment of Transport refused to deliver a copy of an“induced traffic assessment report” to Friends of the Earth,arguing that the requested information was not related tothe environment according to both the provisions ofDirective 90/313/EEC8 and the UK’s domestic legislation.Friends of the Earth brought a case for judicial review ofthe department’s decision, and two weeks before the courthearing was due, the department provided Friends of theEarth with a copy of the report.

In some countries the obligation to provide informa-tion and the grounds for possible refusal are laid down inlegislation. For example, in Hungary the public authorityholding requested information must justify the legality ofany refusal, and an appeal may be instituted against theauthority refusing to issue the information requested with-in 30 days from the communication of the refusal (Act no.63 of 1992 on Freedom of Information of Public Interest).Almost the same provisions exist in Ukraine, where,according to the Law on Information, the burden of prov-ing the legality of any refusal is placed on the authority. Ifrefusal is legally groundless or the information is not pro-


Chapter 1Access to justice in cases involving

access to environmental information Remo Savoia and Dmitry Skrylnikov

vided in time, the court is obliged to impose penalties onthe responsible authority.

The Aarhus Convention sets up a general time limit forpublic authorities to make information available.9 Therequested information must be released “as soon as possi-ble and at the latest within one month.” Consequently,when the requested information is not released in time oris released after the time limit has expired there is a failureto respond by the public authority.10

The Convention provides for the possibility to extendthis time limit to two months when the volume and com-plexity of the information justify such an extension, but asGermany Case 5 (the Baltic Sea Motorway Case) shows, anextended time limit should not be used as an excuse not torelease information promptly. In this case involving the EUAccess to Environmental Information Directive, authoritiesin the state of Schleswig-Holstein interpreted the two-month delay for responding to an information request asapplicable to a formal response (i.e. a simple acknowledg-ment), rather than a substantive response. After attempts tochange this interpretation failed on the national level, acomplaint was made to the European Commission. TheCommission’s interpretation differed from that of theGerman authorities, and it appealed to the European Courtof Justice in 1999 against the failure of the German author-ities to respect the directive in practice.11

Concerning good practices for preliminary reconsider-ation and administrative review procedures in cases whereaccess to information is denied, the question of timeframesshould be considered. The obligation of the EuropeanParliament, Council and Commission to reconsider inter-nally an application for access to information within 15days of the submission of a complaint (confirmative appli-cation) is considered to be good practice. Furthermore, anumber of countries have a one-month timeframe foradministrative (non-judicial) reviews in general — this isthe case in the Czech Republic, Estonia, FYR Macedoniaand some other countries.

In terms of judicial review, six months from making anappeal to the judicial system until the final decision by thecourt, as is the target in England and Wales, seems to be agood example of a timely judicial procedure. A good prac-tice would be to reduce deadlines for refusal of informa-tion to allow the applicant to proceed with the complaint,or to appeal as soon as possible to the next instance.

The Constitution of Ukraine provides for a quick judi-cial review procedure, which allows citizens to appealdirectly to the court on the grounds of a violation of theirrights. This procedure was developed to overcome thebureaucratic delays during the administrative process ofthe past regimes. As practice shows in Ukraine, the processof judicial review in such cases is not expensive and takesfrom one to three months, while pre-judicial, administra-tive processes can only extend the process of getting infor-mation one or several months more.

Incomplete responseAn incomplete response can be considered as a sub-

category of “failure to respond.” In fact, in such an event,the public authority releases only a part of the requestedinformation. A synonym for “incomplete response” is“unsatisfactory response,” as underlined in Ukraine Case 1(the Ukrainian Right to Know Case). In this case, a citizenexpressed concern over the construction of a petrol fillingstation and asked the Oblast Chief Sanitary Doctor to pro-vide information about its activities. In particular, hedemanded an assessment and forecast of health indices forKhmelnitsky residents and the results of laboratoryresearch on air pollution. He received an unsatisfactoryanswer to his request. In fact, the doctor did not provideany information on the essence of the matter. The courtdeclared the actions of the doctor illegal and obliged himto satisfy the inquiry.

This case shows that, although it is generally difficultfor citizens and community organisations to obtainrequested environmental information from officials, theycan defend their entitlement to access to environmentalinformation in court through a juridical procedure.

Challenges to claims of exemptionEach country makes use of certain exemptions from

the general rule of access to environmental information.12

A number of these exemptions are common to all coun-tries, but there are also differences between countries.Some jurisdictions distinguish between mandatory exemp-tions (the public authority must withhold the information)and discretionary exemptions (the public authority maywithhold the information).

Exempt categories common to virtually all countries,and also mentioned in the Aarhus Convention,13 includethe following:

• national defence;

• public security;

• international relations;

• commercial confidentiality;

• ongoing court proceedings or criminal and other inves-tigations;

• personal privacy; and

• intellectual property rights.

Depending on how these categories are applied andwhat other restrictions are in place, authorities have thepotential to limit substantially the transparency that lawson access to information are supposed to ensure. Asshown in all three Spanish cases, the public authority con-

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sistently justified its refusal to give the requested informa-tion by claiming that the information was included in draftdocuments or data, or in internal communications.

The appeal to the European Ombudsman14 by Friendsof the Earth (see appendix B) is a prime example of howauthorities may sometimes use exemptions to impedeaccess to information. In this case, the NGO asked theEuropean Commission (DG XI — now DG Environment)for copies of two studies conducted for the Commission onthe UK’s transposition of the Habitats Directive and variouswaste directives. The Commission provided copies of thestudies, but lines were blacked out with thick ink on pageafter page, on the grounds of “protection of the publicinterest (court proceedings, inspections and investiga-tions).” The NGO appealed to the Secretary-General of theCommission. After a negative decision, Friends of the Earthdecided to appeal to the European Ombudsman againstthese refusals. The ombudsman stated that the exemptionreferring to inspections and investigations should only beapplied when the requested documents were drawn up inthe course of an investigation connected to an infringe-ment proceeding. Therefore, the ombudsman ruled thatthe Commission was guilty of maladministration in refus-ing to provide full copies of the reports.

As a general rule, the Aarhus Convention requires thatexemptions are interpreted in a restrictive way. TheFriends of the Earth case illustrates that judicial or othersimilar bodies will take a hard look at the way in whichauthorities seek to interpret exemptions to disclosure, andwill invalidate administrative acts (or issue opinions withsimilar effect) when the authorities make interpretationsthat are too broad.

A category of exemptions derived from the definitionof state secrets can be found in the national legislation ofvirtually every country. This usually includes informationthat, if released, could adversely affect or endanger nation-al security, public security or public order, internationalrelations, important economic interests, or national mone-tary and currency policy.15 Russia Case 2 (the Nikitin Case)deals with the issue of state secrets and access to informa-tion. A private person was arrested and charged with trea-son through espionage for having allegedly handed overstate secrets to a foreign organisation. After a long trial, thecourt decided to acquit him of the charge of treason. Thecourt based its decision in part on article 29(4) of theRussian Constitution, which states that each person has theright freely to seek, receive, pass on, produce and dissem-inate information by any legal method. This constitutionalprovision was elaborated in the Law of the Russian

Federation on Mass Media. In examining the right to infor-mation, the court took into consideration another require-ment of the Russian Constitution that the list of informationon state secrets shall be determined by federal law. Thecourt stated that the information disclosed by Nikitin fellinto the category of information on ecological conditions(accidents and catastrophes endangering the safety andhealth of citizens, and their consequences) and, accordingto the law, this information could therefore not be consid-ered as secret.

Most countries have an exemption for commerciallyconfidential information. In certain cases, this exemption isused in a very broad way to suppress any information con-nected with business. However, the exemption is some-times restricted when such information concerns impactson the environment, as in Slovenia, or is related to pollu-tion, as in Hungary.

In the UK case of R v. Sec of State for the Environment,Transport and the Regions and Midland Expressway Ltd.(see appendix B), the issue was whether a document — inthis case an agreement for the construction of a toll-financed road scheme — fell under the exemption of com-mercial confidentiality. The court decided that the agree-ment to construct the road was “information relating to theenvironment,” and the fact that a document might containconfidential information that is truly commercial could notbe used to prevent disclosure of the main body of theagreement. Moreover, the purpose of seeking the informa-tion was irrelevant. This case illustrates that courts willexamine the determinations made by public authoritieswith respect to confidentiality and will require publicauthorities to apply exemptions restrictively. In this case,the information that was confidential could not be used tojustify the refusal to disclose other information that couldbe separated from the confidential information.

The case on pesticides and genetically modified crops(see appendix B) again illustrates that public bodies mayattempt to use several arguments — here commercial con-fidentiality — to prevent making information available.The former Ministry of Agriculture, Fishery and Foodsrefused to specify what tests had been conducted ongenetically modified crops. As stated in EC Directive91/414/EEC concerning the placing of plant protectionproducts on the market, confidentiality shall not apply to asummary of the results of tests to establish the efficacy andharmlessness of the substance or product to humans, ani-mals, plants and the environment. Thus, the court ruledthat the information had to be disclosed.

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Article 9(2) of the Aarhus Convention requires that:

“Each Party shall, within the framework of its nationallegislation, ensure that members of the public concerned(a) having a sufficient interest or, alternatively, (b)Maintaining impairment of a right, where the administra-tive procedural law of a Party requires this as a precondi-tion, have access to a review procedure before a court oflaw and/or another independent and impartial bodyestablished by law, to challenge the substantive and pro-cedural legality of any decision, act or omission subject tothe provisions of article 6 and, where so provided forunder national law and without prejudice to paragraph 3below, of other relevant provisions of this Convention.”

This chapter deals with access to justice in examples ofalleged violations of both procedural and substantive types.

In the United States and Western Europe, courts issuerulings more often about procedural illegality than aboutsubstantive decision-making.16 In part this is because thereis rarely any substantive legal question about governmentaction, because laws are written to give a governmentbroad discretion. A legislative term like “protect the envi-ronment” or “prevent harm” may sound like a standard forsubstantive legality, but such a term, as an American judgeonce wrote about a forest statute, “breathes discretionthrough its every pore.”17 On the other hand, there is a gen-eral reluctance by courts in some countries to stop a big,important project on procedural grounds.18 In most of thecountries of Eastern Europe, the Caucasus and Central Asia(EECCA), a court makes a decision usually on the basis ofsubstantive legality. If a procedure has not been respected,the courts are not yet comfortable with ruling against gov-ernments on what they consider “technical” matters.

Judicial challenges to procedural illegality

An examination of article 6 of the Aarhus Conventionshows several procedural requirements that could becomethe subject of a lawsuit or other appeal:

• failure to provide access “to all information relevant tothe decision-making” process, including data, a non-technical summary and alternatives;

• failure to provide early, timely and effective publicnotice;

• failure of the public notice to be clear about the activity,possible decisions and the public authority responsible;

• failure to provide notice of the procedure, includingparticipation opportunities, where information can beobtained, and the nature of the information;

• failure to provide an opportunity to submit comments,or failure of the authority to take due account of com-ments; and

• failure to inform the public (and to do so timely) of thefinal decision “along with the reasons and considera-tions on which the decision is based.”

These six requirements can be grouped into three cat-egories of procedural errors:

• failure to disclose all information to the public relevantto its participation;

• improper procedures for public participation, such astimely or adequate notice, opportunity to comment,timeframes, restrictions on “administrative standing,” orother conditions; and

• inadequate response to comments received (failure totake due account), or failure to reveal the reasons orconsiderations for the decision.

It is likely to be easier to get judicial correction of somecategories of violations than of others. Regarding disclo-sure, it appears to be difficult to persuade a judge thatundisclosed information was relevant to the decision-mak-ing process. The second — improper participation proce-

Chapter 2Access to justice in cases involving public

participation in decision-makingSvitlana Kravchenko, Dmitry Skrylnikov and John E. Bonine



dures — asks courts to do the kind of work that is mostfamiliar to them. If a member of the public can show thatprocedures were violated, courts can rule in their favour,without thinking that they are making policy decisionsthemselves about the environment. The third is the mostdifficult: to ask a court to determine that the governmentinadequately responded to a particular comment, or inad-equately explained its reasons, requires the court to makea somewhat subjective judgement rather than a clearjudgement about legal procedures. This is not to say that itis wrong for the court to do this. It is simply observed thatjudges may be reluctant to rule in such cases.

Justice regarding non-disclosure of documentation for participationin decision-making

It is a basic principle of public participation that all doc-umentation and information relevant to a proposed deci-sion should be open for examination by the public con-cerned. Article 6(2)d) of the Aarhus Convention requiresthat a proponent/applicant or public authority responsiblefor decision-making must notify the public concernedabout public participation procedures, including “the pub-lic authority from which information can be obtained andwhere the relevant information has been deposited forexamination by the public.” This special aspect of “accessto information” is similar to, but somewhat different fromthe more general access to information principles underarticle 5 of the Convention. In this special case, denyingaccess to information not only harms the information prin-ciple, but also the participation principle.

Information relating to proposed decisions must beavailable, according to article 6(2), “early in an environ-mental decision-making procedure,” when all possibilitiesand alternatives are open for consideration. This gives thepublic a chance to be prepared and to participate effec-tively. Furthermore, the information must be available “inan adequate, timely and effective manner.” Lack of accessto documentation can make public participation ineffectiveor even impossible.

The question of the availability of documentation maybe easy or difficult for a court to rule on. On the one hand,it is easy to rule that documents should be provided. Thisseems basically procedural and a purely legal issue. Suchcases have become rather usual in court practice. On theother hand, to rule that the absence of a document affect-ed the decision-making process may be more difficult for acourt to deal with. Some of the cases included in this hand-book illustrate these problems.

In Armenia Case 1 (the Victory Park Case), the con-struction of a hotel complex started in a public park with-out an environmental impact assessment (EIA). When citi-zens saw trees being cut, the Environmental PublicAdvocacy Centre (EPAC) tried to obtain information aboutthe project from the city. It asked whether an EIA existed,

whether any hearings had been held, and whether themayor of the city had given permission. But access to therequested information was refused. Informally, EPAC dis-covered that the mayor of the city had given permission tostart the construction, provided that an EIA first made apositive conclusion. EPAC also discovered that, despitethis condition, and despite the absence of an EIA, the gen-eral architect of the city made another order to start theconstruction two days later.

The court dismissed EPAC’s case, never addressing itsdemand for information. EPAC also sued the prime ministerfor failing to provide information, but the court proceedingswere delayed, and again no injunction was issued to stopthe ongoing construction. This case is also an example ofthe lack of opportunities for participation in EIA or experti-sa (see section on Participation rights and expertisa).

In Germany Case 2 (the Experts’ Documents Case) onthe construction of a new and extended section of railwaytrack between Erfurt and Leipzig/Halle, the courts weremore attentive to citizen participation rights. A nature con-servation association recognised under federal law, NABULandesverband Sachsen-Anhalt (NABU), requested accessto various documents in order to comment on the propos-al. These included, in particular, an expert report by theplanning office referring to a survey of the nature aspects ofthe surrounding countryside. The public authority rejectedthe NABU application to view the files. NABU sued. Thecourt ruled that the defendant public authority hadinfringed the plaintiff’s participatory rights. The court reject-ed an argument by the defendant that, under theAdministrative Procedure Act, the denial of access to docu-mentation was an insubstantial procedural error and there-fore could not affect the legality of the development con-sent. The court ruled that the Nature Conservation Act gavea right of consultation of independent weight and absolutecharacter. This is an important statement, showing thataccess and participation rights under more recently prom-ulgated environmental laws have to be treated seriously.

Not all cases in Germany are this successful. GermanyCase 5 (the Baltic Sea Motorway Case) involved the ques-tion whether documents were made available adequatelyto allow public participation to occur properly. The recog-nised conservation group, Bund fur Umwelt undNaturschutz (BUND) and the regional group SchleswigHolstein Association opposed the construction of a sub-section of the A20 motorway, the so-called Baltic Seamotorway. During the procedure to approve the plan, acontroversy arose about the extent of legal protection forthe Wakenitz valley. Since the conflict between the author-ity and BUND could not be resolved, BUND filed a caseagainst the project.

The association made procedural and substantivelegal arguments in its suit. Procedurally, the associationcomplained that important documents were not madecompletely accessible. The plan approval authority

refused the inspection of the requested documents duringthe hearing procedure. The authority furthermore modi-fied the documents several times, without allowingBUND to comment again.

The court ruled that BUND could only challenge sub-stantive violations of the nature protection law, and notviolations of other laws, and apparently not proceduralinadequacies such as the failure to provide information.Yet, adherence to proper procedures and the ability tochallenge violations in the courts are fundamental to boththe rule of law and the implementation of the principles ofthe Aarhus Convention.

Justice in events of improper procedures for public participation

According to article 6 of the Aarhus Convention, publicnotification about a decision on specific activities shouldbe given early in the process and should be adequate,timely and effective. Public participation should be real,not just a formality. There should be a clear procedure forthe public to make comments and proposals and giveinformation or opinions in writing or during hearings.When these procedural conditions are not met, access tojustice should be available to require correction.

Access to justice related to requirements for “administrative standing”

The system of prerequisites or qualifications to theright to participate is sometimes termed “administrativestanding.” From another point of view, this can be calledthe “right to participate.”

In the cases submitted by NGOs and governments forthis handbook, restrictions on the ability of the public orNGOs to challenge decisions through administrativeproceedings seem to be just as common as restrictions ontheir ability to go to court. In Hungary Case 1 (theBalaton Highway Case), the Somogy Nature Conser-vation Organisation challenged a permit but was refused“administrative” standing by the Ministry of Transport,Telecommunications and Water Management. In PolandCase 1 (the Highway and Housing Case), public authori-ties argued against allowing residents to participate inadministrative appeals about a highway for some time,but eventually relented. In Slovakia and the CzechRepublic, NGOs or ordinary citizens are being preventedfrom participation in administrative procedures, such asforest planning, as has been reported for a long time.

A participant in an administrative proceeding has theright, in many countries, to take an unsatisfactory decisionto court for a legal review afterwards. Conversely, priorparticipation is sometimes a prerequisite to judicial chal-lenge. The result of denying citizens or NGOs to participateduring the administrative stage, therefore, may be to pre-vent them from challenging illegal actions later in court, onthe basis that they did not participate earlier.

By keeping the public or NGOs out of public partici-pation procedures in the first place, an opportunity may belost for the judicial system or an equivalent, independentbody to rectify violations of procedure or substance.Therefore, blocking participation at the administrativelevel also blocks independent judicial review of non-com-pliance with laws by public authorities.

Participation rights in EIA and expertizaThe main and most powerful tools for public participa-

tion in decision-making are EIAs and “environmentalexpertiza.”19 In EECCA countries, a combination of EIA andexpertise is used. Relevant laws have provisions on publicparticipation and public hearings, but they are declarative.Special regulations are needed to enforce them. Countriesratifying the Aarhus Convention without having procedur-al regulations will have to establish such regulations innational legislation to comply with the Convention.

It is often the case in the EECCA region that, evenwhere procedural regulations do exist, violations are nottaken seriously into account by courts. This practice leadsto a situation where investors and sometimes even govern-ment authorities knowingly violate procedural require-ments. Sometimes, however, courts are willing to enforceprocedural requirements. In a precedent in Ukraine, thefirst instance court found the positive conclusion of thestate ecological expertise invalid in the Mineral FertilizersTerminal project mainly because of violations of procedur-al requirements, including the public’s right to be informedand to participate in the expertise process. 20

Other examples involvingthe denial of participatory rights

Germany Case 2 (the Experts’ Documents Case) illus-trates another issue that arises in access to justice in envi-ronmental decision-making — defence of the rights of thepublic to participate when important changes are made toa proposal. Substantial amendments to the project affectedmore than 50 percent of the total land area. Although theproject planners had made amendments to the planningdocuments laid out for public inspection in order to coun-teract the objections of the public concerned, the publichad no real chance to express its opinion on the new pro-posal. The amended planning documents were sent to therelevant authorities and private individuals who would beaffected by the amendments. They had been asked to sub-mit their opinions, and the opinions received had beendealt with. However, a new date for public discussion wasnot set according to the development consent. The courtruled that the participatory rights of BUND were violatedby the Federal Railways Authority.

Public participation should not be a mere formality,checking off a list to ensure that some sort of comment isallowed. Rather, it is supposed to achieve two goals:improved decision-making by the authorities, and theimplementation of the rights of the public to influence


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decision-making through the expression of its demands.To allow comments on one version of a proposal but todeny the chance for comments or a hearing when the pro-posal is changed in an important way does not achieveeither goal. The German court recognised this and provid-ed for the enforcement of the rights to proper participation.

Germany Case 6 (the Elbe Case) involved the ques-tion whether the issuing of a permit should be dealt withunder one procedure (which required public participa-tion) or another (which did not require it). The govern-ment, according to the law, chose the second procedureand NGOs appealed to the court. The court ruled that theuse of the second procedure was lawful. It made a dis-tinction between a development project involving awaterway, which had to be executed with public partici-pation, and the maintenance of a waterway, which didnot. This illustrates that, even when procedures for par-ticipation are available, they may contain exceptions thatmay lead to the overriding of the general obligation toallow public participation.

One of the necessary requirements for a proper publicparticipation procedure is that the public must be able tounderstand the relevant environmental documents, asillustrated in United States Case 1 (the Telephone Case).Without comprehensible documentation, public participa-tion will be merely a formality, without any chance of ben-efiting either the public or public authorities. This caseillustrates how such an improper procedure can be chal-lenged. The highly technical language of the EIA in thiscase was difficult to understand by a layperson. Even aHarvard University professor, who helped to prepare theEIA, had difficulty explaining it. As a result, the courtissued a nationwide injunction against a pesticide sprayingprogramme, until proper procedures could be followed.This case upheld the right of the public to demand cleardocuments as part of their participation and commentingin an EIA process, and showed that the court can be a bul-wark in support of those rights.

Justice in events of an inadequate response to comments received (failure to take due account)

Aarhus Convention parties must ensure that a decisiontakes account of the outcome of the public participationprocess. This means that a public authority has to listen topublic opinion and take it into consideration during deci-sion-making. It also means that, if a reasonable public sug-gestion is rejected, there should be an explanation of thereasons for such a rejection.

In Poland Case 1 (the Highway and Housing Case), res-idents of the Muchobor Maly housing estate in Wroclaw

claimed that a proposal to build a district highway neartheir housing estate would be illegal. They separatelyappealed the development consent and the building per-mit. Comments on the inadequacy of the EIA by residentsliving close to the new highway construction were rejectedadministratively. On appeal, the Supreme AdministrativeCourt agreed with some of the residents’ comments, how-ever, apparently requiring new conditions for building thehighway. This case illustrates the potential for judicial cor-rection of a failure to take comments into account. In addi-tion, there was an appeal to another independent body,the EIA Commission of the Ministry of Environment, whichagreed that the EIA was not in compliance with the law,but the lack of citizen appeals at an earlier time resulted inallowing the EIA to stand.

These cases suggest that citizens can challenge inade-quate compliance with participation procedures in somecountries, under certain circumstances. The fact that suchcases are brought before the courts shows how importantaccess to justice is to environmental law.

Judicial challenges to substantive illegality

Arguments on procedural violations will sometimesnot be taken into account by a court. They may not besufficient, or the substance of a decision will be inade-quate where there are no procedural violations. Forexample, in Serbia and Montenegro Case 3 (the CacakCase) the procedure was formally upheld, but the publicwas not satisfied with the decision.

In some countries in the UNECE region, EIA legislationallows for the review both of compliance with EIA proce-dures and of the substantive merits of the decision throughthe administrative review process. For instance, in BulgariaCase 1 (the Pirin Mountain Case), six environmental NGOsappealed the substantive legality as well as the procedurallegality of an EIA decision. In EECCA countries, the envi-ronmental expertise process brings substantive legalityeven more to the forefront in judicial challenges.

In many cases, challenging the substantive legality of adecision is not easy. It usually requires the involvement ofexperts, which may lead to financial barriers (see Part I,chapter 7, Costs of experts). In addition, there may be ageneral lack of real independent experts. Such a problemis illustrated by Kazakhstan Case 1 (the Petrol Plant Case).In this case, state expertise was inadequate. The mainobstacle in the case was a lack of independent environ-mental expertise.

Article 9(3) of the Aarhus Convention states that:

“In addition and without prejudice to the review pro-cedures referred to in paragraphs 1 and 2 above, eachParty shall ensure that, where they meet the criteria, ifany, laid down in its national law, members of the pub-lic have access to administrative or judicial proceduresto challenge acts and omissions by private persons andpublic authorities which contravene provisions of itsnational law relating to the environment.”

The right to enforce environmental law under article9(3) of the Aarhus Convention can include two concepts:

• the right of government institutions, NGOs or people toenforce the law against private persons outside thegovernment (for example, enterprises and others whoare subject to it); and

• the right of the public (or perhaps an ombudsman) tocomplain in court about a government act or omission.

Article 9(3) provokes many questions, including thefollowing:

• What can be reviewed?

• What can trigger the review procedure?

• Who can ask for review (standing)?

In this chapter, the focus is primarily on the last ques-tion: who can ask for review? It is this question (often ask-ing whether a party has a “sufficient interest”) that appearsmost often in cases considered in this handbook.

What can be reviewed?Contraventions of national lawrelating to the environment

Article 9(3) of the Aarhus Convention allows a personto challenge acts and omissions by private persons and

public authorities “which contravene provisions of itsnational law relating to the environment”. A wide numberof laws are likely to be considered in the category that“relate” to the environment in some way. One scholarlyanalysis concluded: “This provision allows the public toenforce a broad range of environmental laws.”21

What can trigger the reviewprocedure? Acts and omissions,private and public

Article 9(3) of the Aarhus Convention allows a personto challenge “acts and omissions” by “private persons andpublic authorities” that contravene provisions of its nation-al law relating to the environment. Obviously this coversfailures to take action required by law, as well as actionsthat themselves violate the law. In addition, according tothe Implementation Guide to the Aarhus Convention:“‘Omissions’ … includes the failure to implement orenforce environmental law with respect to other publicauthorities or private entities.”22 Another aspect is whethermembers of the public could indirectly initiate criminalactions, a matter which was discussed at the Workshop onAccess to Justice in Environmental Matters under theAarhus Convention, held in September 2001.23 The UK isan example where this is possible.

Who can ask for the review?Standing

The question of who has the right to enforce a statuto-ry (or constitutional) obligation when a fellow citizen orgovernment official is disregarding that obligation islabelled in many countries as “standing to sue” or locusstandi. The traditional law of standing in many countriesprohibited corporations, as well as citizens, from suing thegovernment unless they were “aggrieved” or a “legal right”was violated. Corporations usually had no problem satisfy-


Chapter 3The public’s right to enforce

environmental lawJohn E. Bonine

ing such standards. This purportedly neutral rule, there-fore, had the effect of allowing business interests into thecourt to complain about violations of the law more readilythan members of civil society.

Article 9 of the Aarhus Convention was designed to lib-eralise the classes and categories of persons (natural orlegal) who can file lawsuits against public authorities andothers when they perceive there to be a violation of law.24

The liberalisations that have occurred mostly appear tohave been already in place before ratification of theConvention and are discussed below.

A party must ensure that members of the public can filechallenges to actions of private persons as well as publicauthorities that are alleged to contravene national environ-mental law, or have official status in administrative proce-dures leading to enforcement “where they meet the crite-ria, if any, laid down in its national law.” The provisiondoes not state that members of the public can file lawsuitsif permitted by national law. Instead, it grants the right tosue or complain and then permits parties to lay down “cri-teria” if they wish to do so. If specific criteria are not laiddown in national law, the logical interpretation would bethat members of the public should be deemed to have theright to go to court or to an administrative body. This obvi-ously raises questions of determining whether any criteriaare laid down, whether they are laid down in “law,” andwhat they determine.

Judicial interpretation can play a significant role inimplementing the Aarhus Convention (see section on con-stitutional interpretations expanding standing below).Although article 9 of the Convention can be read as beingof little direct help to a prospective litigant, it can also beread as modifying or overriding pre-existing national lawand thereby having direct effect.25

National legislation for expandedenforcement/standing

Several broad legislative models are used with respectto standing in the UNECE area: actio popularis; NGO stand-ing; sufficient interest standing; and legal rights standing.

Actio popularis Some countries use a model in which legislation

declares that “any person” can sue the government when itbreaks the law — an actio popularis. This is fully consistentwith article 9 of the Aarhus Convention, even though it isnot required by the Convention.

The Netherlands may well have the least restrictive leg-islative criteria in Europe for accessing the courts.26

Furthermore, the Netherlands links administrative standingand judicial standing by allowing “anyone” to participate inthe consultation process with a public authority and thengranting anyone who has lodged objections at the consul-tation stage the right to ask a court for judicial review of the

decision.27 Additionally, the Netherlands also extendsstanding to NGOs in civil lawsuits much like Italy,Switzerland, or many German Lander.28 As explained inNetherlands Case 2 (the “Indispensable” Pesticides Case):

“Since 1987 environmental NGOs in the Netherlandsare ... recognised in every court to have an interest inprotecting the environment. This is a general interestand there is no need for ownership or other more spe-cific interests.”

These developments were largely the result of thejurisprudence of court decisions and were codified in sec-tion 3.305a of the Civil Code, which has been treated bythe courts as making no restrictive changes to the broadDutch jurisprudential rule of NGO standing.

Further provisions are found in the DutchEnvironmental Protection Act, adopted in 1993. This law,which consolidates a number of previous statutes into acomprehensive statute, controls licensing and other mat-ters, sets out provisions for public participation, and pro-vides for judicial review of such matters. The question ofstanding for judicial review requires consultation of boththe General Administrative Law Act and the EnvironmentalProtection Act. Betlem explained this as follows:

“The combined effect of these two Acts entitles thosewho have lodged objections in the consultation stage ofthe decision making process to apply for judicial reviewof the decision. Because ‘anyone’ has the right to makereservations in the preparatory phase of the licensingprocess, a two stage actio popularis accordingly applies.In technical legal terms, in the main it [is] so-called ‘inter-ested persons’ who have locus standi, including publicauthorities and non-governmental organisations.”29

A well-known court case in the Netherlands also recog-nised NGO standing. In the Reinwater case, the highestDutch court gave environmental organisations standing tosue where (1) the stated purpose of an organisation hasbeen affected, (2) the interests in the lawsuit lend them-selves to grouping, and (3) the interests served by the liti-gation are protected by civil law.30

As a final note, environmental NGOs in the Netherlandsare allowed to appear in the administrative court (but notthe civil court) without being represented by a lawyer.Thus, in practice, many cases in the administrative courtsare argued by economists, scientists and engineers.

Legislated NGO standing for recognised NGOs

The second model can be loosely termed NGO stand-ing. Under this model, several countries grant a specialright to NGOs to file lawsuits without showing that they arepersonally interested or in some way affected by a deci-sion. Legislation either specifies the characteristics ofNGOs that are given standing, or it provides that a state



authority will create and maintain a list of NGOs that areautomatically granted standing and permitted to takeclaims of illegal acts by government to the courts.

According to a 1992 study, Switzerland was the firstEuropean country to legislate a right of action (or standingto sue) for environmental NGOs.31 In Switzerland, article12 of the Federal Nature and Heritage Conservation Act of1966 allows appeals against administrative decisions to theSupreme Court, for nationwide nature associations. Thesame can be found in article 55 of the EnvironmentalProtection Act of 1983 for nationwide nature NGOs, pro-vided they were founded at least ten years before the law-suit and are officially recognised by the federal govern-ment.32 A third law, the Trails and Footpaths Act of 1987,also uses this accreditation procedure.33

In Italy, articles 13(1) and 18(5) of Law no. 349 of 1986grant environmental associations the right to sue in admin-istrative courts if they have been recognised for this pur-pose in a ministerial decree.34

Sufficient interest: Flexible subjectiverequirements for standing

A third model, sufficient interest standing, grants legalstanding to those who are “affected” (sometimes “interests”have to be affected). This may be granted either in generalterms for all persons, or as a part of granting legislatedNGO standing.

The case studies included in this handbook often men-tion standing as an issue. Standing is often governed bylegislation that requires the litigant to have an “interest” ofsome kind, in order to be among those who are allowed tobring a court case.

What exactly is the “interest” of an NGO organised toserve a broader public interest, and not the narrow interestof its “owners?” Article 3.4 of the Aarhus Conventionanswers that, unless there is national legislation imposingspecial requirements, interest is simply the fact that anNGO is devoted to environmental protection.

In Belgium, legislation requires that a person have an“interest.” The courts have generally interpreted the legis-lation to require that a natural or legal person must show apersonal and direct interest in order to have access to anycourts.35 Belgium Case 1 confronted the question in 1981 ofdetermining whether an NGO’s definition of its “interest” inits own statute (charter, or legal registration) could be usedin deciding whether it can sue to enforce environmentallaws. The Council of State (which hears administrativecases) decided that protection of the environment was apublic interest and that an environmental group onlyneeds to represent a point of view that concurs with that ofa group interested in the environment.

The Council of State’s broadened approach to standingwas not followed in the civil courts. In the same year asBelgium Case 1, the Supreme Court ruled (and has sincereaffirmed on numerous occasions) in a civil case involv-ing the same issue and plaintiff that a purpose in an NGO’s

“statute” cannot be considered a personal and direct inter-est for the purposes of the civil courts.

A second method of gaining access to the Council ofState to challenge administrative acts is for an NGO toshow that its “statutory purpose” is affected by the decisionthat it is challenging. The question of NGOs satisfying the“personal and direct interest” requirement before theCouncil of State has continuously arisen in several cases. InBelgium Case 3, the Council of State ruled that NGO pur-poses such as promoting nature conservation and protect-ing wildlife are only “general” interests and not “personal”ones for the purposes of gaining access to justice; that aninterest in nature reserves is not a personal interest if theact being challenged does not directly impact on one of thereserves being operated by the NGO; and that an interestin protecting birds is not sufficient to challenge a decisionthat will harm frogs.36

This question was also fermenting in the Belgian legalsystem because of legislation adopted in 1993 that soughtto broaden access to the courts by NGOs, using a “specialprocedure.” One commentator notes that Belgium’s Rightof Action Relating to the Protection of the Environment Actof 1993 “recognizes a restricted right in associations: theymust be registered as environmental protection associa-tions for at least three years, can challenge specific ele-ments in environmental statutes, and may request eitherinjunctive relief or imposition of preventive measures.”37

One judge in the civil courts has been willing to treatthe broadened standing approach of the 1993 legislation asrelevant even in cases not covered by it. Belgium Case 2involved a challenge to night-time flights disturbing thesleep of residents near an airport. The airport asserted thatthe NGO had no standing to sue in the “normal” proce-dure, because it lacked a “personal” interest. The court offirst instance decided, however, that the meaning of inter-ests had, in effect, been broadened by the legislature toinclude collective interests in the 1993 legislation (eventhough the plaintiffs were not using the procedures in thislegislation). He stated that the legislation added somemeaning to the right to a healthy environment enshrined inarticle 23 of the Belgian Constitution. Since the judge didnot suspend the flights, the interpretation is not likely to bereviewed any time soon by the Supreme Court.

In Georgia, according to chapter XLIV of the Code ofCivil Procedure (1999), citizens are entitled to sue againstan administrative act only in cases where it directly affectstheir legal rights. Georgia Case 2 (Vake Park Case) involvedNGOs proving that they had a “sufficient interest” to meetthis test. They were successful, showing that the “plaintiffhad no information about issuance of the administrativeacts [the permits were never published] — he even had nochance to be involved in the decision making process.” InGeorgia Case 1 (Defence of National Park) NGOs foundthemselves in the unusual position of arguing that the plain-tiff (a group of farmers) in the case had no legal standing.


C H A P T E R 3 : T H E P U B L I C ’ S R I G H T TO E N F O R C E E N V I R O N M E N TA L L AW

In some instances, where legislation recognises broad-ened standing in environmental cases, the public authorityclaims that the matter is not environmental, and the broad-ened standing test therefore does not apply. This was thesituation in Hungary Case 1 (the Balaton Highway Case).The Somogy Nature Conservation Organisation wasdenied standing in cases opposing permits for a new roadthat would cut through a forest. The courts, including ulti-mately the Supreme Court, ruled that, even though envi-ronmental NGOs have standing without doubt in “environ-mental” cases, a case related to the construction of a high-way is not an “environmental” case. The court apparentlyruled that a matter has to be explicitly classified as “envi-ronmental” by the Act on Environmental Protection, suchas EIA and environmental audit cases.

Legal rights or individual interests: restrictive subjective requirements for standing

Countries using the fourth and oldest model, legalrights or legal interests standing, grant legal standing onlyto those with economic interests, or similar very specificinterests, to protect. A variety of terms is used, such as arequirement for a “direct and personal” interest, the “viola-tion of a right,” or a “legal interest.” It is important to notethat a person with an economic interest will usually beadmitted into the court under the fourth model, whilethose with an interest in non-economic values or enforce-ment of the rule of law will often not be able to sue.

The legislation in some jurisdictions appears to restrictstanding more explicitly on its face, granting standing onlyfor those with a “direct and individual” or “direct and per-sonal” interest. Interpretations of these terms can vary dra-matically, however, as can be seen when comparing deci-sions of the European Court of Justice and the Council ofState of Greece. For those jurisdictions where courts haveissued restrictive interpretations that appear to deny rightsgranted by article 9 of the Aarhus Convention, a significantquestion arises: must the legislation be amended in the lightof the Aarhus Convention, or will it be interpreted differ-ently by the courts, in order to give effect to the commit-ments expressed by parties in ratifying the Convention? Itcould be argued that both branches of government have anequal obligation to take account of the rights in article 9.

The European Court of Justice refused to take a broadview of standing in environmental matters in the 1998 caseStichting Greenpeace Council et al. v. EuropeanCommission (see appendix B).38 Several individuals andNGOs brought suit in the European court of first instance,contesting the legality of EC funding for two fossil fuel-fired power plants being built by Spain in the CanaryIslands. The court denied standing. On appeal, theEuropean Court of Justice also denied standing. The rele-vant provision of the Treaty Establishing the EuropeanCommunity39 is article 230(4):

“Any natural or legal person may, under the same con-ditions, institute proceedings against a decisionaddressed to that person or against a decision which,although in the form of a regulation or a decisionaddressed to another person, is of direct and individualconcern to the former.”

The court of first instance said that the individual plain-tiffs (including local residents, farmers and fishermen)would not suffer from the decision in any way other thanthat of other residents of the Canary Islands, and thereforethe matter could not be of “direct and individual concern.”Furthermore, Greenpeace, as an NGO, could not havestanding since it did not simply represent individuals whowould have standing, nor did it have some special, indi-vidualised interest of its own. Furthermore, participating inprior proceedings was not enough to give Greenpeace aspecial, individualised interest. The European Court ofJustice upheld the lower court. For individuals, it said:

“[T]he specific situation of the applicant was not takeninto consideration in the adoption of the act, whichconcerns him in a general and abstract fashion and infact, like any other person in the same situation, theapplicant is not individually concerned by the act.”40

As for Greenpeace, its arguments for general publicinterest standing and about the vacuum in enforcement ofEU laws created by restrictive interpretations of article 230fell on deaf ears. So did its argument that the right to beinformed and consulted in an EIA procedure gives it a rightto go to court.41

In Greece administrative acts can be challenged infront of the Council of State, which is the supreme admin-istrative court in the country. The situation can be com-pared to that in Belgium, as discussed above. According toa professor of public law and environmental law at theUniversity of Athens, “[t]he jurisprudence of this court, onenvironmental matters, has been very rich and very inno-vative, since 1977.”42 The Council of State’s jurisdictionover environmental law is based on the fact that article 24of the Constitution of 1975 makes the protection of theenvironment an obligation of the state. At the beginning ofthe 1990s, the Fifth Section, a separate section of theCouncil of State was created for environmental disputes.The court has annulled illegal administrative acts, sus-pended the execution of harmful administrative acts, andformulated fundamental environmental principles thathave strongly influenced environmental legislation.43

Locus standi in front of the Council of State to annul anadministrative act is available to both natural and legal per-sons (organisations and businesses), but only if they prove“a personal, direct and present legal interest.”44 But this“legal interest” has been interpreted by the Council of Stateto be broader in environmental disputes than in other mat-ters. If a natural person has “any kind of a territorial rela-



tion with the area” of environmental damage, the personcan have standing. This allows an interest that need not bestrictly personal, may be only indirect, and can even bemerely potential rather than already in existence.45 This isbased on article 24 of the Constitution which, by creating aduty on the state is considered to create a collective and“supra-individual” right.

Traditional legal doctrine in Germany has disfavouredallowing the public to go to court to require the state toabide by the law. As one writer has put it, “German stand-ing doctrine is built on deeply-engrained principles againstthe general legality view of access to court and the right ofcitizen groups to challenge administrative action.”46 On theother hand, many of the Lander, or states, have beennotably more progressive and open toward granting stand-ing to sue, particularly for established environmentalNGOs. This openness at the legislative level has not neces-sarily led to expansive court decisions, however. Forexample, in a case in the 1980s, a public authority used aninformal procedure with no public participation, in orderto avoid the formal planning procedure that would haveclearly allowed public participation (with regard to certainissues on a controversial extension of a runway atFrankfurt Airport). An NGO sued and won in the trial court,but the Court of Appeals ruled that the NGO could notchallenge the failure to use the formal procedures thatguaranteed participation, because its lack of participationitself precluded court litigation concerning whether itshould have been allowed to do so.47 But as Germany Case3 (the Windmill Case) shows, other German courts havebeen receptive to NGO lawsuits under Lander legislation.In this case, involving a nature conservation associationrecognised in accordance with §29 of the Federal NatureConservation Act, the court ruled that an NGO could takelegal action in accordance with §42, paragraph 2, of theCode of Administrative Procedure, without being requiredto prove that its own rights had been infringed.

Some countries with seemingly restrictive “legal inter-est” tests have found a way to liberalise standing throughinterpretation. For example, environmental protectionassociations have had some success in gaining standing inNorway even though it uses a “legal interest” test.48 As longago as the Alta case in Norway in 1979, NorgesNaturvernforbundet (Norwegian Society for thePreservation of Nature) successfully achieved legal stand-ing. The Norwegian Supreme Court stated:

“It has been accepted under the circumstances that aplaintiff may have a legal interest in bringing an actioneven though the decision has no direct influence on hisown legal position. Depending on the circumstances,also an interest organization may have the required legalinterest even though the decision in the matter is of nodirect consequences to the organization’s or the mem-bers’ rights. The need for judicial control of the publicadministration may be the decisive factor here.”49

According to one scholar, “[t]he grounds in the Altacase for accepting the organization’s legal interest were theallegations concerning nature conservation interests.”50

Judicial interpretations and expanded standing

Legislative changes are not the only means for broad-ening or narrowing categories of those who can enforceenvironmental or other laws. The judicial system in manycountries has something important to say about standing— whether it is the interpretation of statutes (discussedabove), the explicit common law reasoning of England,Wales and Northern Ireland, or the use of constitutionalinterpretation as a tool.

Common law expansion of standingA series of decisions made it clear how broad the right

of legal standing is in England, at least in environmentalcases. The environmental group Greenpeace was grantedstanding in the Thorp Nuclear Case to challenge a pro-posed licence for a nuclear power plant. The High Courtsaid that Greenpeace was a “responsible and respectedbody with a genuine concern for the environment” andthat the granting of standing to pursue the litigation wouldsave the court’s time. Greenpeace would efficiently andeffectively represent the interests of 2,500 of its supportersliving in the area of the proposed nuclear plant. This maybe seen as a kind of “representational standing,” or per-haps “third-party standing,” in lieu of others who wouldhave had ordinary standing.51 Judge Otton said:

“I reject the argument that Greenpeace is a ‘mere’ or‘meddlesome busybody’ … I regard the applicants aseminently respectable and responsible and their gen-uine interest in the issues raised is sufficient for them tobe granted locus standi.”52

Ex parte Richard Dixon53 continued the liberalisationand the exposition of the viewpoints that public law isabout duties, not rights. Justice Sedley wrote:

“Public law is not at base about rights, even thoughabuses of power may and often do invade privaterights; it is about wrongs — that is to say, misuses ofpubflic power; and the courts have always been aliveto the fact that a person or organisation with no partic-ular stake in the issue or the outcome may, without inany sense being a mere meddler, wish and be well-placed to call the attention of the court to an apparentmisuse of public power.”54

Constitutional interpretations expanding standing

The constitutions of a growing number of countriesform the basis for increased access to justice through judi-



cial interpretation. Sometimes constitutions are explicit intheir locus standi provisions, while others have been usedby judges to broaden standing.

In Europe, some courts have found that the constitu-tional rights to a safe environment embody implied rightsof access to justice. As the emerging democracies of theCEE region rewrote their constitutions in the early 1990s inthe wake of the fall of Communism, they included two sig-nificant types of provisions that are not to be found in theolder constitutions of the US or Western European coun-tries. The first was the right to a safe or healthy environ-ment, while the second proclaimed rights of access toinformation, public participation and access to the courts.

The development of the right to a healthy environmentin the UNECE region is discussed in Part II (chapter 1). It ismentioned here in connection with opportunities for mem-bers of the public to challenge acts or omissions in violationof environmental law. At least two constitutional courts inthe CEE region have interpreted the right to a safe environ-ment thus far. The Constitutional Court of Slovenia has stat-ed that the right to a healthy environment guarantees atleast the right of access to the courts — an abolition ofrestrictions on standing to sue in environmental matters.The Constitutional Court of Hungary has gone even further.

Section 162 of the Constitution of Slovenia providesthat “[a]ny person who can show a proper legal interest, asdetermined by statute” may bring a case before theConstitutional Court.55 As recently as 1993, theConstitutional Court explicitly rejected the idea of an actiopopularis that could allow any person to bring a case basedupon an interest in upholding the rule of law. In a typicalcase the Court said:

“A general interest in ensuring constitutionality andlegality and implementing the principles of the Rule ofLaw is insufficient to fulfil the constitutionally definedcondition for lodging an initiative, since such a wideinterpretation of legal interest could be invoked byanyone in any case, whereby the limiting meaning ofthe second paragraph of Article 162 of the Constitutionwould be lost. The legal interest of the initiator himselfmust thus be demonstrated, not just a general socialinterest in ensuring constitutionality and legality.”56

Without actio popularis, however, another legal basishad to be found for environmental matters to come to theConstitutional Court. The question became, then, whethera statute, explicitly or implicitly, has provided a personwith a “legal interest.”

The Constitutional Court of Slovenia granted standingin a case brought by the Association of Ecologists ofSlovenia (see appendix B),57 a national NGO and 25 indi-viduals.58 The NGO achieved standing in large partbecause the Environmental Protection Act, which cameinto effect in 1993, provided that the protection of the envi-ronment is the responsibility of, inter alia, professional and

other NGOs committed to environmental protection.59 Thecourt therefore concluded that the NGO could bring law-suits based on its stated purposes. Individuals were alsogranted standing to sue. The Constitutional Court recog-nised the legal interest of an individual in such a matter forthe first time, on the basis that article 72 of the Constitutioncontains the right to a healthy environment in which tolive. The Court ruled that a person’s interest is not limitedonly to the environment close to the place where he or shelives. Essentially, a right that on its face is substantive wasconverted by the Court into a procedural right givingaccess to the judicial process.

It is now increasingly apparent that NGOs devoted toenvironmental protection can have the right to bring mat-ters before the Constitutional Court. Legislation recognis-ing the special responsibilities of NGOs to protect theenvironment, and the existence of a constitutional right toa healthy environment provide the basis on which thecourt has been able to find a “proper legal interest.”

The Hungarian Constitution contains a “right to a safeenvironment” that is similar to that of Slovenia. It isasserted that this right can be used to obtain access to thecourts in Hungary.60 Article 18 of the HungarianConstitution confers the right to a healthy environmentto all persons, “without discrimination among nationali-ties.” Thus this right may also be claimed by citizens ofother countries.61 This is obviously of some interest inthe light of article 3(9) of the Aarhus Convention, whichstates that persons shall “have access to justice in envi-ronmental matters without discrimination as to citizen-ship, nationality or domicile.”

Other experts have subsequently commented that theHungarian Constitutional Court has indeed provided“open access to citizen petitions.” It was contended ear-lier by Bandi that this would give the ConstitutionalCourt a greater sense of legitimacy among citizens.62

In fact, in the Protected Forest Case (see appendix B),the Constitutional Court of Hungary held that articles 18 and70/D of the Constitution demand a high level of environ-mental protection, that citizens can enforce this right, andthat the court can overturn a law as unconstitutional if itconcludes that it has contravened this right (see Part II,chapter 1). In a case involving a challenge to legislationallowing the privatisation of cultivated forest land, the courtruled that the legislation, which contained no special dutiesto protect the forests and thus weakened protection in com-parison to the status quo, was unconstitutional under theenvironmental rights provisions of the HungarianConstitution.63 The court classified the environmental rightas a third-generation constitutional right, deserving of noless protection than traditional rights. This remarkable rul-ing raises the possibility of other court rulings against legis-lation seen as environmentally inadequate.

It is undoubtedly too early to predict where constitu-tional litigation will go in the coming years under the envi-




ronmental rights provisions of various European constitu-tions. It is self-evident, however, that these provisions can-not be dismissed as mere window-dressing.

The rule of lawThe website of the European Court of Justice pro-

claims: “The great innovation of the EuropeanCommunities in comparison with previous attempts atEuropean unification lies in the fact that the Community

uses only the rule of law to achieve that end.”64 As theCourt of Justice says further, “any true legal system …needs an effective system of judicial safeguards when …law is challenged or must be applied.”65

Focus on the rule of law is, indeed, also the primarymessage of article 9 of the Aarhus Convention. Parties to theAarhus Convention have a great deal of work to do if thepromise of article 9(3) to ensure access to justice is to be ful-filled ,so that the law derived from the Convention’s obliga-tions can be truly applied in the spirit of the rule of law.




A complainant must resort to certain mechanisms, pro-cedures and bodies for access to justice. Most legal systemsprovide various means of access to justice, includingadministrative review, judicial review of administrativedecisions, an ombudsman, arbitration and mediation.Article 9 of the Aarhus Convention takes into account theavailability of such means of access to justice by providingopportunities for both administrative and judicial review tobe made available to challenge actions of public authoritieswith respect to matters under the Convention.

Administrative versus judicial appealMost UNECE countries have a general kind of adminis-

trative review process for decisions by public authorities.This administrative process mostly functions more rapidlythan an appeal to a court and is often free of charge. Theadministrative appeal system is not intended to replace theopportunity to appeal to a court, where such an opportuni-ty exists, but in many cases may resolve the matter expedi-tiously and avoid the need to go to court. In the case ofchallenges to decisions on access to information, accordingto the Aarhus Convention,66 the administrative appeal pro-cedure may take two forms — either a “typical” appeal to ahigher administrative authority, or a request for the sameauthority to reconsider its decision, before going to court.

The right to use the administrative system to appealagainst decisions resulting from an administrative proce-dure is recognised for affected persons in all WesternEuropean countries. In the majority of the countries inCentral Europe and the EECCA region, the right of admin-istrative standing in the case of infringement of access toinformation, as well as public participation rights are alsoguaranteed constitutionally, and in administrative andenvironmental legislation. Certain countries have adminis-trative courts (e.g. Estonia, Slovakia and Slovenia) or spe-cific administrative institutions for this purpose (e.g. theCzech Republic and Latvia). Only in Bosnia andHerzegovina are there no administrative appeal provisions.In all countries, standing in administrative appeal proceed-

ings is limited to interested and/or affected individuals and,with the exception of Hungary, Poland, Moldova, Russiaand Ukraine, to interested and/or affected NGOs.67

In many countries it is necessary to exhaust all availableadministrative review procedures before going to court.68 Asdemonstrated by the three Spanish case studies, an adminis-trative appeal can be reversed by the Supreme Court.69

In Germany Case 3 (the Windmill Case), for instance,lodging an appeal for administrative review before bring-ing a legal action for annulment is, in general, necessary,according to the Code of Administrative Procedure.

In Denmark, on the contrary, ordinary courts deal withadministrative law cases, not necessarily only after theadministrative appeal possibilities have been exhausted.However, ordinary courts show respect for the controlmethods of the administration. It is considered desirable tomake use of the administrative appeal system before goingto the courts of law. The Danish courts generally respectthe administrative appeal system, though the administra-tive appeal procedure is rather informal.70

In Spain, the possibility of an administrative appealdepends on who issued the decision. If the issuing author-ity hierarchically depends on another authority, it is the lat-ter that will decide on the administrative appeal. After anunsatisfactory decision of the higher authority, a com-plainant may file a reconsideration appeal before thisauthority prior to appealing before the courts, or may godirectly to the administrative court.71

In Georgia, according to the new Code ofAdministrative Procedure, an administrative act can beappealed in court only when this act has an impact on thepersonal legal rights of the plaintiff. This means that theplaintiff has to prove his or her sufficient interest in the case.

In order to overcome the complications and length ofjudicial procedures, the complainant in Russia Case 3 (theShrinking Park Case), for instance, chose the proceduralform of complaint under chapter 24-1 of the RussianFederation Code of Civil Procedure, which appeared to bea faster solution than a lawsuit.

In Western European countries, the relative efficiency


Chapter 4Administrative, judicial and other

means of access to justiceRemo Savoia

offered in practice by administrative review is well devel-oped. In Denmark, for instance, there is an obligation oneach public authority that makes a legally binding decision(whether concerning the environment or any other topic)against a complainant to explain to the complainant howhe or she can appeal against such a decision. This is con-sistent with article 9 of the Aarhus Convention.

Special environmental tribunals One solution to the general difficulty experienced by

judges and other legal professionals in dealing with thecomplexity and peculiarities of environmental cases is toestablish specialised tribunals with jurisdiction and expert-ise over environmental matters. On the national level, suchtribunals have been established in Australia, New Zealandand, in the UNECE region, most recently in Sweden. Onthe international level, several initiatives are under way toestablish an international environmental tribunal.

The ombudsmanThe institution of an ombudsman72 as an independent

and impartial review body for violations of administrativelaw against citizens was developed in the Scandinaviancountries.73 Currently,74 this institution, or a similar one,functions in many Western European75 and EECCA coun-tries,76 as well as on the supranational level (see examplesof Denmark and Hungary, and the Friends of the Earthcase in appendix B). In Croatia, Hungary, Poland andSlovenia, as well as many Western European countries, it isspecified that citizens have the possibility to appeal to theombudsman on environmental issues.

The ombudsman deals with complaints from the pub-lic regarding decisions, actions or omissions by the publicadministration. The ombudsman is elected by parliamentor appointed by the head of state or government after con-sultation with parliament. The role of the ombudsman is toprotect the people against violations of rights, abuse ofpowers, error, negligence, unfair decisions and maladmin-istration, in order to improve the public administration andmake the government’s actions more open, and the gov-ernment and its officials more accountable to the public.The office of the ombudsman may be enshrined in a coun-try’s constitution and supported by legislation, or createdby a separate act of the legislature.

The ombudsman usually has the power to undertakean objective investigation into complaints from the publicabout the administration of government. The ombudsmanmay also have powers to initiate an investigation even if acomplaint has not been received. To protect people’srights, the ombudsman has various tools:

• investigate whether the administration of governmentis being performed contrary to law or unfairly;

• if an objective investigation uncovers improper admin-istration, make recommendations to eliminate theimproper administrative conduct; and

• report on his activities in specific cases to the govern-ment and the complainant, and, if the recommenda-tions made in a specific case have not been acceptedby the government, to the legislature.

In most countries, the ombudsman also submits anannual report on his or her work to the legislature and tothe general public.

The ombudsman usually does not have the power tomake decisions that are legally binding for the govern-ment, in contrast with judicial decisions. According to mostnational legislation, approaching the ombudsman with acomplaint does not exclude a later judicial procedure. Theombudsman has moral power and makes recommenda-tions for measures to be taken, as supported by a thoroughinvestigation of the complaint. A vital characteristic of theombudsman’s office is its independence from the execu-tive/administrative branch of government. Another advan-tage is that the ombudsman can usually take rather quickor even immediate action, and examinations initiated bythis office are free of charge. For the ombudsman’s investi-gations and recommendations to be credible to both thepublic and the government, the ombudsman maintains andprotects the impartiality and integrity of his office.

The Aarhus Convention does not explicitly mention theinstitution of ombudsman. The phrase, “another independ-ent and impartial body established by law,” used in article9(1) may possibly imply such an institution. Strictly speak-ing, this would depend on its characteristics, but theombudsman typically does not grant a legal right to areview procedure, supply binding decisions, or provideinjunctive relief.77 The four Scandinavian countries pre-sented a common interpretative statement during thenegotiations relating to article 9 of the Aarhus Convention.According to the statement, the institution of the ombuds-man may correspond with the requirements of theConvention in practical, but not in legal terms. Thus, it mayprovide a practical means for access to justice in specificcases that is often cheaper, quicker and just as effective asproper judicial proceedings.

An example of how the institution of ombudsman canwork is provided in the case of Friends of the Earth (seeappendix B). In the first instance, the NGO appealed to theSecretary-General of the Commission about the refusal todisclose information, as required by the Code of Conductconcerning public access to Commission and Council doc-uments attached to Commission Decision 94/90/EC. TheSecretary-General upheld the Commission’s refusal.Friends of the Earth then appealed to the EuropeanOmbudsman,78 who ruled that the Commission wrongfullyrefused to provide the requested information. It alsoargued that the Commission was acting inconsistently with




the Aarhus Convention. This case is a good example ofhow a decision resulting from an administrative appeal canbe reversed in a fast and effective manner using instru-ments other than a “traditional” judicial procedure.

Arbitration and mediation“Alternative dispute resolution”79 is an activity that cov-

ers a variety of out-of-court bodies, which provide alterna-tives to litigation through the courts. While this is notappropriate for many matters under the AarhusConvention, it may be relevant especially where environ-mental organisations involved in public participation pro-ceedings have grounds for complaint and seek to negotiatea settlement. In most cases, it is necessary to turn to suchalternatives because the traditional judiciary is often tooexpensive and time consuming. In addition, by accepting adecision through arbitration or mediation, public authori-ties do not have to face the stigma of an adverse ruling.

Alternative dispute resolution procedures may include,but are not confined to arbitration, early neutral evaluation,expert determination, mediation and conciliation.Accordingly, the mechanisms for resolving disputes mayvary from binding decisions to recommendations or agree-ments between the parties. The organisation and manage-ment of these procedures may also vary: they may be pub-licly or privately organised and take the form of anombudsman scheme, consumer complaint board, privatemediator, trade association or others. Which of the aboveprocedures is the most appropriate will depend on thenature of the dispute to be resolved.

Procedures can be distinguished on the basis ofwhether a neutral third party proposes or makes a decision

(arbitration) or whether the third party seeks to bring theparties together and assist them in finding an agreement bycommon consent (mediation). Arbitration may be bindingor non-binding (advisory), court-ordered or voluntary.Binding arbitration involves having a neutral person (or apanel of neutral persons) decide a dispute, after hearingeach party’s presentation of evidence and argument. Theparties agree in advance that the decision (award) of thethird party is to be final. Generally, there are no appealsfrom an arbitrators award, though parties may seek judicialrelief from binding arbitration under certain circumstances.These include if the arbitrator exceeds the authority con-ferred under the parties’ agreement to arbitrate, denies aparty a fair hearing, or demonstrates bias or prejudice.Parties may also sometimes seek judicial relief if there is anobvious mistake, such as a calculation error, that appearson the face of an award.

The Permanent Court of Arbitration has adoptedoptional rules for arbitrating disputes relating to the envi-ronment and/or natural resources,80 supplemented byenvironmental conciliation rules adopted in 2002. Theserules are potentially available for application in a widerange of disputes, including those among private parties orbetween private and public parties.

Mediation is another process for resolving disputeswith the aid of a neutral entity. The third party’s roleinvolves assisting parties, privately and collectively, toidentify the issues in dispute and to develop proposals toresolve the disputes. Unlike arbitration, the mediator is notempowered to make decisions. Accordingly, the mediatormay meet privately and hold confidential and separate dis-cussions with the parties to a dispute.

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Article 9(4) of the Aarhus Convention requires fair pro-cedures for access to justice. Fair procedures, in turn,require impartiality in the access to justice process.81 Theprocess should also be free from prejudice, favouritism orself-interest.82 The independence of the judiciary is one ofthe main preconditions in ensuring fairness in the accessto justice process, and its absence precludes the normalexercise of the right of access to justice. A lack of judicialindependence has been found, especially in countrieswhere the judiciary has been a voice of government poli-cy and politics.

Judicial independenceJudicial independence, as defined by the Center for

Judicial Independence,83 is an ideal state of the judicialbranch of government that includes two complementaryconcepts: individual independence and institutional inde-pendence. The latter is normally ensured through the con-stitutional separation of powers. The former is consider-ably more complicated and is related to the independenceof a judge or other person exercising judicial power todecide on each particular case solely on the merits of thelaw and the facts of the case without undue influence fromthe government, the parties or the public.

The institutional independence of the judiciary wassometimes the victim of the traditional interdependencybetween the branches of government that existed in mostCentral European and EECCA countries until the early 1990s.In some countries, it occasionally still becomes evident.Russia Case 2 (the Nikitin Case) is an example of how theinfluence and image of the Federal Security Bureau and theMinistry of Defence (formerly major powers within theSoviet system) could make the court return a case repeated-ly for further investigation despite the fact that the prosecu-tion lacked incriminating evidence throughout. In ArmeniaCase 1 (the Victory Park Case) the Armenian court, unableto reject the suit of an NGO against the prime minister, post-poned the hearing of the case on a minor procedural point.

The individual independence of judges is closely relat-ed to the issue of judicial corruption discussed below.However, while there is evidence that corruption andbribery do indeed take place, especially in countries withweaker economic development, a judge can also be a tar-get of political influence (e.g. through threats of or an actu-al impeachment process, or elections), or can be depend-ent on economic benefits.

As Fyodorov, advisor to the Investors’ RightsAssociation, described in his interview on Radio FreeEurope, judges in Russia are usually under “administrativepressure.”84 They most often depend on the local govern-ment, especially in areas where the local municipality pro-vides the judge with housing or sometimes pays him or herbonuses as a supplement to rather meagre compensation.85

“It is almost impossible to win a case against the MoscowCity Government,” according to Fyodorov. Although thephrase refers to the investment-related cases heard by theCourt of Arbitration, the same is often true for judges ofother courts in the Moscow region.

Some of the cases included in this handbook supportthese observations. For example, in Russia Case 3 (theShrinking Park Case) it took three years for the plaintiffs toget their suit accepted by the Moscow City Court. Tworejections were appealed to the Supreme Court on thebasis of judicial bias.

Whatever the reason for rejecting a case in a given situ-ation, these precedents might have a certain chilling effecton the use of access to justice mechanisms by the public.

CorruptionAnother factor contributing to the poor functioning of

access to justice mechanisms is corruption in the judicialbranch. Countries with significant problems in access to jus-tice are often known for a relatively high degree of corruptpractices in all three branches of government: judicial,executive and legislative. While corruption may occur tosome degree in all governments, it is likely to blossom more

Chapter 5Administration of justice and due process

Marianna Bolshakova

freely in countries with more serious economic anddevelopment problems. Judicial corruption is no exception.

The European Civil Law Convention on Corruption(Strasbourg, 1999)86 defines corruption as “requesting,offering, giving or accepting, directly or indirectly, a bribeor any other undue advantage or prospect thereof, whichdistorts the proper performance of any duty or behaviourrequired of the recipient of the bribe, the undue advantageor the prospect thereof.” As with corruption in otherbranches of power, judicial corruption is promoted by twofactors: the lack of a proper system of monitoring, andpoor compensation and other conditions of work.87

The first of these is related to the system of governmentand its ability to ensure proper checks and balances on thejudiciary or another branch of government, or to providefor accountability. The latter can be attributed to both thepoor legislative regulation of the conduct of the judiciary,as well as to economic problems in society.

Some of the factors contributing to corruption in thejudiciary are related to:

• the lack of alternative dispute resolution mechanisms(see chapter 5);

• complicated and non-transparent judicial procedures;

• inconsistent and unclear legislation; and

• in some cases, the presence of organised crime.88

Systematic judicial corruption contributes to the growthof public distrust of the justice system and therefore pre-vents the exercise of rights to access to justice. Where alack of judicial independence, corruption in other branch-es of government, and economic difficulties that draw theattention away from environmental issues are also present,access to justice in environmental matters might remain anempty declaration.

There are currently many national and especially inter-national efforts to prevent corruption. The newly devel-oped Council of Europe Criminal Law on Corruption andCivil Law on Corruption89 — the former already with tenratifications — the UN Declaration of 1997, and efforts bymany international organisations, including the UN and theWorld Bank, will hopefully lead to a decline in corruptpractices in the region. Long-term measures of institution-al reform to ensure greater independence of the judiciaryare best supplemented by short-term benefits for publicofficials (e.g. sufficient salaries, or increased staff and tech-nical capacities).90

Countries like Spain and Finland have a “judicialombudsman” as a mechanism to ensure accountability ofthe judiciary without influencing the course of justice. Thefunction of control vested in the institution of the ombuds-man is considered by some to be fully justified in order tocounterbalance rather unlimited powers that might be vest-ed in the judiciary.91

Civil society can play a significant role in preventingcorruption and supporting judicial independence. NGOsand individuals can act as watchdogs.92 They can influencethe government and the judiciary both in individual cases— Armenia Case 1 (the Victory Park Case), Russia Case 3(the Shrinking Park Case) and especially Russia Case 2 (theNikitin Case) — and in general through media attention,cooperation with the government and the negotiating ofmore efficient monitoring regulations and procedures.

Knowledge and capacityAnother problem is the lack of judicial capacity and

knowledge of environmental law and public participationprocedures. The field of environmental law is still rathernew, especially in the eastern part of the UNECE region,as are the procedures requiring public participation indecision-making. With an overloaded judiciary giving pri-ority to cases of traditional economic importance, thecomplexities of environmental legislation are simply notsomething an average judge or prosecutor pays attentionto. In Spain Case 2 (the Aznalcollar Waste Dam Case) notonly did the judge lack sufficient knowledge to under-stand the merits of this complicated case, but the meansand resources available to the court (i.e. personnel,equipment and technical support) also proved insuffi-cient for the parties to work with the case records. Somecountries, such as Ukraine, have tried to solve this prob-lem by setting up special “environmental” departments inthe office of the prosecutor. Some international organisa-tions present specialised training programmes for thejudiciary (as well as for the public administration).Sometimes the issue of environmental law is touchedupon in regular but infrequent mandatory training ses-sions organised by the courts themselves. This is clearlynot enough, however, considering the complexity ofenvironmental law and public participation procedures.The improved training of judges and prosecutors, as wellas reductions in their workload are (arguably) necessarypreconditions for efficient access to justice.

Public supportIn countries where corruption and a lack of independ-

ence are pervasive, the public tends to give little credenceor support to the justice system, even where public author-ities and judges perform their duties in a progressive wayusing contemporary legislation and international norms.

This may be especially true with respect to environ-mental cases, since the public is still preoccupied withdaily economic problems in many countries. It is often truethat the better the level of economic development, thestronger the interest of the public and media in issues suchas environmental protection and human rights. In somecountries the public might even actively reject environ-



mental considerations as an unaffordable luxury whenpressed with financial difficulties.93

Another reason for the lack of public support is the lackof links between the public and conscientious public offi-cials and judges. One of the practical solutions might begreater media coverage not only of corruption scandals,but also of innovative approaches and progressive judge-ments by officials and judges.

Legal certaintyUnclear laws and underdeveloped procedures can

contribute to corruption and hinder the whole concept ofdue process. Unclear, dubious and often conflicting provi-sions, laws and regulations lead to lengthy court hearingsand multiple appeals and revisions. In many cases, ratherthan go through multiple (sometimes conflicting) provi-sions and dozens of acts, the judge simply hears both par-ties and decides to his or her best knowledge. The lack oftraining and a clear understanding of environmental lawand public participation rights and procedures, as dis-cussed above, also contributes to the situation.

The lack of procedural norms regulating public accessto information and participation in decision-making com-plicates the matter significantly. It affects the public itself,as well as government officials responsible for decision-making. When a case is transferred to the court it is thejudge who has to clarify the matter, often having to rely onconflicting norms.

Clarification of legal norms and especially the develop-ment of detailed procedures are seen as priority tasks bymany government officials and judges. This will lead tomore efficient decision-making processes, reducing dis-agreement and therefore the number of cases broughtbefore the courts. Finally, it will make interpretation andadjudication easier for the judges themselves.

Right to counsel and presumption of innocence

As Russia Case 2 (the Nikitin Case) demonstrated,problems occasionally appear with regard to such basicdue process elements as the right to counsel and the pre-sumption of innocence. In this case, the defendant in acriminal proceeding had to turn to the Constitutional Courtof the Russian Federation for a ruling that the denial of theright to choose counsel of his own free will was unconsti-tutional. The defendant had to appeal to the ConstitutionalCourt for a second time three years into the process whenthe lower court sent his case back to the authorities for fur-ther investigation in view of a lack of sufficient evidence.The Constitutional Court ruled that such action was in vio-lation of the constitutional presumption of innocence.

Such approaches appear to violate fundamental con-cepts of due process and therefore the basic human right to

a fair trial as defined by article 6 of the European Conventionon Human Rights and Fundamental Freedoms.94

Judicial consistency and use of precedent

Consistent application of the law is critical to social andeconomic development. As citizens and legal entities turnto the legal system to resolve disputes, they must perceivethat justice is distributed equally and impartially. In orderto make informed, law-abiding decisions, they must beable to rely on past applications of the law to be informedabout the probable ways in which the law will be appliedin future circumstances. For this to occur, laws must beinterpreted consistently from case to case within the judici-ary, regardless of the parties involved or the experience ofthe judge.

In the absence of proper legal regulation, the use ofprecedent becomes inevitable even in systems that are notgenerally based on precedent. In many countries, theopinions and interpretations issued by higher courts haveto replace missing legal provisions for the use by lowercourts and sometimes by administrative authorities. InEECCA countries, supreme courts often issue special bul-letins containing their opinions in landmark cases. Theinterpretations given in the rulings of constitutional courtscan and should in practice be used in future cases foraccess to justice to become a truly efficient mechanism.The rulings in Russia Case 2 (the Nikitin Case) discussedabove are good examples.

While the decisions of appeal courts play a major rolein ensuring consistency among courts of first instance inboth common and civil law systems, additional time andexpense are required to bring a case to appeal. It is there-fore important that courts of first instance are properlyinformed about norms of legal interpretation and haveaccess to the latest legal information and case practice.One device that may assist in achieving judicial consisten-cy is the advisory opinion (see below).

Advisory opinions95

In many civil law countries, higher courts issue adviso-ry opinions. An advisory opinion sets forth the legal opin-ion of a higher court on how to resolve a given legal ques-tion properly, usually in a theoretical context. Such opin-ions are distributed to lower court judges, as well as tolawyers and the public, to develop a consistency of legalinterpretation as they try similar cases. Particularly in tran-sition countries where judges often have incompleteaccess to legal information, the specific recommendationscontained in the advisory opinions are critically importantto the first instance courts, and are routinely referred to byjudges as they prepare their legal decisions.


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The legal authority of advisory opinions varies fromcountry to country. In Moldova, for example, an advisoryopinion only guides lower court judges. The advisoryopinions of the Supreme Court are not “mandatory” forjudges, and do not “interpret the law.”96 Until recently,however, the situation in Ukraine was the opposite. There,an advisory opinion had universal binding effect.97

Common law systems, such as those of England, Walesand the US, generally do not employ advisory opinionsdue to the case or controversy requirement.

Where advisory opinions are used, generally a singlebody, such as the supreme court, has the authority to issuethem through a formal decision or plenary session. Asopposed to a constitutional court, the supreme court’sjurisdiction extends to the application of the broad array oflaws and regulations within a country, thus enabling it toissue advisory opinions on a wide variety of legal topics.

Supreme courts may issue advisory opinions on theirown initiative, to rule upon lower court decisions decidedinconsistently, cases imprecisely interpreting a new law, orwhere certain lower court decisions are frequentlyannulled by higher courts. In some instances, lower courtsalso petition the supreme court for review of specificpoints of law. Courts issuing the advisory opinions oftenconsult with experts in relevant fields.

In most countries, there is wide agreement within thelegal community on the importance and usefulness of advi-sory opinions. Lawyers regularly use them to bolster andsharpen their legal arguments, and judges view them asessential guidance in their case decision-making processes.Particularly in transition countries, a common complaintamong lawyers, judges and others is that laws are volumi-nous, vaguely written and constantly changing. In such asituation, advisory opinions play a critical role. Advisoryopinions typically address areas of law where inconsisten-cy is greatest. In many countries, there are also few othersources of legal information, thus affording the opinions allthe more deference and importance within the legal com-munity. The opinions also stimulate and inform more in-depth legal research within the academic community.

Problems can be encountered with advisory opinions.The most pressing problem identified by practitioners inseveral countries is that the opinions are not binding aslaw. In addition, advisory opinions are often poorly dis-tributed. After independence, due to budget constraints,the Supreme Court Bulletin of Moldova was only publishedsporadically and did not even contain all advisory opinionsthat were issued. In Ukraine, availability was somewhatbetter for those with access to the Internet or commercialdatabases. However, such resources were rarely availableto the legal community in smaller cities and rural areas.Another problem is the lack of resources. The SupremeCourt of Ukraine typically issued 10-15 binding interpretiveopinions per year prior to June 2001.98 Moreover, environ-mental issues seem to be avoided due to their complexity.

For example, the Moldova Supreme Court has issued onlyone advisory opinion on environmental law.

Considering the important role played by advisoryopinions, especially in countries in transition, additionalresources should be made available to expand the numberof opinions issued per year, and to ensure their regularpublication and dissemination.

Timeliness of proceduresThe importance of the timeliness of access to justice

procedures is recognised in article 9(4) of the AarhusConvention. Procedural loopholes allowing for significantdelays in transferring cases between courts and adminis-trative bodies make the option to use them less attractive.This significantly reduces the proportion of cases wherepublic rather than personal interest is pursued. Even wherean individual right or interest is concerned, an expectationof many years of hearings and appeals often discouragesaffected individuals from pursuing their interests throughadministrative procedures or the courts.99

In some countries, the time it takes to move a casethrough the process may result in a ruling that, when itfinally comes, is not relevant anymore. In two of three caseson access to information in Spain it took more than six yearsto reach judgement. It took longer than four and a half yearsfor Nikitin to be acquitted in the criminal case in which hewas charged with treason and espionage. The delays werecaused by returning the case for further investigation in vio-lation of the presumption of innocence, lengthy proceduresand the legal possibility of the prosecution to appeal a ver-dict of not guilty given by the lower court. Among the rea-sons usually given for delays in court procedures are thelack of human and technical capacities of the courts, andoverburdened judges (e.g. the appellate chamber of theTbilisi Regional Court in Georgia has only six judges, and ittakes over a year to have an administrative case heard).

Another example of a delayed procedure is MoldovaCase 1 (the Sarmi Park Case) where the sessions of the courtwere postponed twice due to the defendant’s non-appear-ance. Insufficient penalties for contempt of court and thelack of enforcement measures to ensure a defendant’sappearance contribute to significant delays in alreadylengthy court procedures. Solutions suggested by partici-pants at a workshop for the Central Europe and EECCAregion100 included introducing stricter responsibility forcontempt of court, imposing higher fines for non-appear-ance at court hearings, providing bailiffs with more efficientenforcement authority, and looking at the existing mecha-nisms in use in other counties (e.g. the US and the UK).

In addition, the use of other dispute mechanisms canbe a speedy alternative to a lengthy court procedure. Theirincreasing use will have positive effects on court proce-dures by way of example, and by offering a real alternative(see chapter 4 above).




Protection of persons exercisingtheir rights

Article 3(8) of the Aarhus Convention protects personsexercising their rights as enshrined in the provisions of theConvention from being penalised, persecuted or harassed inany way for doing so. This protection extends to the exer-cise of the right of access to justice, and applies to protectionagainst retribution by either authorities or private parties.

In parts of the UNECE region, the possibility that theexercise of the right to access to justice might result in phys-ical or other direct harassment is real, and is sometimesrelated to the involvement of organised criminal groups.One case study involved a successful attempt aimed tomake the plaintiff withdraw the suit. In Georgia Case 2 (theVake Park Case), the plaintiff withdrew the suit at a stagewhen it appeared clear that he would succeed. Accordingto the plaintiff, he and his family received threats anddemands to withdraw the suit, which challenged the con-struction of a hotel in a public park. Although there havenot been many such incidents identified for this handbook,they certainly do occur, warranting clear legal guarantees ofprotection for those who exercise their rights to access tojustice and for those who strive to ensure that the processof access to justice is indeed fair, equitable and timely. Insome jurisdictions persons seeking to thwart the course ofjustice are dealt with very severely indeed.

There is, however, another approach to harassment. Itis broader than direct interference with a particular caseand has a more strategic character. It is the increasing useof collateral civil claims, counter-suits or in some caseseven criminal proceedings — sometimes on flimsy legal

grounds — against an individual or organisation related tothe exercise of rights or freedoms, or actions in the publicinterest. Such strategic litigation (referred to as SLAPP suits)could lead to the misuse of the judicial process to attackpersons exercising any right under the Convention. Trendsand examples related to this barrier to public participationand access to justice are discussed in Part I, chapter 7.

Further obstaclesTaking due account of the issues considered in this

chapter can give rise to effective access to justice. Whereany element is missing, however, obstacles to access to jus-tice will arise. These obstacles may be compounded byother obstacles discussed elsewhere in the handbook, forexample, the general reluctance of the courts in somecountries to grant injunctive relief, and the high costs ofexpertise and professional legal assistance. These barrierscould create a thick procedural wall between the judicialsystem and an individual, thus effectively denying justiceand the administration of due process.

Although cases where the violation of due processrequirements occurs seem to be rather exceptional, theirvery presence implies that, in order to ensure properaccess to justice and to promote the efficient use of mech-anisms, certain clarifications in the national legislation ofsome countries have to be made. Just as importantly, how-ever, capacity-building efforts to train judges and publicofficials, programmes to raise the technical capacity ofcourts, and measures to ensure a proper basis for the inde-pendence of the judiciary, also have to be supported.

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Perhaps the two most commonly discussed factors inaccess to justice are remedies and costs. The AarhusConvention recognises the importance of adequate reme-dies in article 9(4) (costs are discussed in chapter 7). If adecision in favour of the complainant cannot result in realaction to correct a wrong, the public will not seek justicethrough legal process. Thus, the power and ability of tri-bunals to provide adequate remedies are as important asany other aspect of access to justice.

Powers of judges and administratorsThe public will not make use of legal process unless

those making the final decision (whether judges, admin-istrators, arbitrators or others) have the necessary powersto make things happen in the course of proceedings andin fulfilment of their judgements. The situation is sim-plest in the case of administrative tribunals, even more soin internal administrative appeals, where the goal may beto invalidate a lower administrative decision. In suchcases, the administrative appeal body has a range ofinternal levers that can be applied to make sure its deci-sion is respected. Administrative tribunals have theoption of disciplinary proceedings against authorities, forexample, which are lax in issuing orders for project pro-ponents to cease activities because their permit has beeninvalidated. In some cases, tribunals may issue suchorders directly.

Where it is necessary to go to court, however, orwhere the administrative appeal needs to address issuesthat are external to the agency, tribunals must beequipped with stronger powers in order to reach thelarger community. Such powers may be as basic as thepower to compel someone to appear before the tribunal.Legal experts from Moldova have pointed out that per-sons called to court often ignore summonses, withoutsuffering any hardship in respect of the case itself. Thisresults in delays and damage to the summoned person’sopponent, creating an incentive not to appear.101 On the

other hand, courts in many countries make full use oftheir powers to compel persons to appear. Failure toappear may result in a decision against the summonedperson in his or her absence (default), and the court mayalso impose personal sanctions, including fines, or in themost serious cases, imprisonment for contempt of court.

The power of the court to enforce its own judgementthrough contempt actions is considered a logical andinherent power of the court in some systems, withoutwhich justice could not be done. In other systems a statu-tory basis may be available. In any case, such power canonly be effective in conjunction with a very real andpractical mechanism — “officers” directly responsible tothe court, who can execute a contempt judgement.Requiring a court to appeal to a related body such as thepolice for execution might place too much power anddiscretion in the hands of the latter. It is important torealise, however, that contempt powers can only be heldby fully independent tribunals governed by due processand the rule of law, in order to ensure against the abuseof power.

Contempt may be civil or criminal. Legal systems asdiverse as those of the US and Russia allow for the pos-sibility of criminal liability for failure to respect a courtorder. Of course, administrative tribunals usually havefar more limited powers, due to the fact that they are lessformal and employ fewer due process safeguards. Thus,it is often necessary for administrative authorities to go tothe courts to procure orders for stronger measures.

Tribunals also must have various options at their dis-posal to design a full and effective remedy. Traditionally,one of the main purposes of going to a tribunal was to geta judgement for damages. Disputes have become morecomplex, however, with the result that tribunals can oftenissue specific orders to remedy wrongs. In disputes overenvironmental issues, damages are often inappropriate,and time is often of the essence. Thus, the extraordinarypowers of courts and administrative tribunals havebecome relatively more important — especially the power


Chapter 6Remedies

Brian Rohan and David Jacobstein

to issue injunctions. The Aarhus Convention recognisesthe importance of injunctive relief by making specific ref-erence to it. That and other remedies are discussed inmore detail below.

Enforcement of judgementsLegal systems must be able to ensure that the final deci-

sions of tribunals are respected and followed. There aremany issues at work in the enforcement of judgements,which can only briefly be mentioned here. One such issueis geographical jurisdiction. It may be difficult for a deci-sion in a particular state or locality to be implemented out-side that area. As international standards for access to jus-tice become more accepted, inter alia, through the imple-mentation of the Aarhus Convention, the enforcement ofjudgements across borders (giving them full faith and cred-it) should become easier. Another issue is whether the tri-bunal maintains jurisdiction over the enforcement of itsjudgement, or whether a complainant must use subsequentproceedings for enforcement. But the potential for irre-versible damage when dealing with environmental mattersis a strong argument for ensuring enhanced powers of tri-bunals to enforce their judgements directly.

Injunctions as a remedy under the Aarhus Convention

What is an injunction?An injunction is a legal mechanism, usually taken with-

in the context of a court proceeding, to require an action,or more commonly to halt an action or set of activitiessomehow connected to the court proceeding. An injunc-tion is often a pivotal aspect of an environmental case.Unlike commercial law disputes where one party claimsmonetary damages from another party, environmental dis-putes often involve proposed activities that, if undertaken,would produce an irreversible environmental impact. Insuch cases, monetary compensation is insufficient. Theonly way that a remedy can ensure complete relief is toprohibit the activity.102

How does an injunction work?An injunction typically works by preserving the under-

lying situation or set of facts (status quo) until a final courtdecision is issued. For example, a government or NGOmay bring a legal challenge to a developer’s plan to erect ablock of flats within a city park, claiming that the develop-er failed to comply with public participation requirements.However, unless the developer’s construction activities arestopped while the lawsuit proceeds, the ultimate courtdecision may be rendered meaningless.

At the beginning of proceedings, a court may therefore

issue an injunction — an enforceable order prohibiting aspecified activity, such as any further construction of theflats. By prohibiting an action during the entire duration of acourt proceeding, an injunction ensures that complete reliefwill be possible when a final decision is issued. A defendantcould not employ a strategy that seeks to delay, on the onehand, legal proceedings through all available means while,on the other hand, implementing its potentially illegal activ-ity before the court could issue a final decision.

Types of injunctions: Temporary versus finalIn many countries, including the UK, Ireland, Slovenia

and Austria, courts may issue both “temporary” and “final”(or “permanent”) injunctions.103 A temporary injunction —the primary focus of this discussion — is issued at an earlyphase in the legal proceedings in order to preserve thematter in dispute for the duration of the proceedings. Afinal injunction, on the other hand, would be incorporatedinto the court’s final decision, for example, ordering that ablock of flats could never be built in the location and man-ner proposed by the developer, due to incompatibility withgreen space and planning laws. In essence, the finalinjunction is an aspect of the court’s final ruling, rather thana separate, interim order. However, when appropriate, acourt may incorporate the temporary injunction into itsfinal ruling, in whole or in part.

Parties involved in an injunctionInjunctions may be used among a variety of parties,

with variations from country to country. Usually, the gov-ernment can seek an injunction when challenging a privateparty’s action. Also, an NGO may seek an injunctionagainst a private party. In a number of countries, NGOsmay also seek an injunction against the government whenthe government is the party alleged to be undertaking anillegal action.

The broad impact of injunctionsInjunctive relief is of particular significance in environ-

mental cases. Environmental cases typically include twocomponents: an ecological question or fact pattern, and a setof legal requirements. The ecological question, for example,may be a proposed construction in an open space, or apotential discharge of pollutants into the water or air. Thelegal requirements in such a situation may include holdingpublic hearings, releasing information about planned activi-ties, getting the approval of environmental ministries orother public authorities, or performing an EIA.

Injunctive relief, specifically a temporary injunction,acts to prevent the alteration of the ecological status quowhile legal requirements are being scrutinised, thusincreasing the focus on these legal requirements. Thisincreased focus assures the integrity and validity of the



process in each specific case, and also establishes a normof behaviour with all sectors of society understanding thatlegal procedures are an integral part of the decision-mak-ing process, rather than mere nuisances or formalities to beignored until after work has commenced.

A typical example of how an injunction can preservethe ecological status quo and maintain focus on the legalrequirements in an environmental lawsuit is Germany Case4 (the Nature Preserve Case). In this case, a private investorapplied in 1994 for a planning exemption to allow him todevelop a section of a nature reserve into one-familyhomes and commercial buildings. He initially applied tobuild 46 houses. He was at first denied permission, butafter reducing his project by half, was granted permissionby the Brandenburg State Public Administration to build inthe protected area. The conservation group NABUopposed the development during the public participationprocedure related to the initial 46-unit proposal.Subsequently, the group was not informed about a secondround in the public participation process related to therevised 23-unit proposal. NABU sued the BrandenburgState Public Administration both for failure to implement itspublic participation obligations properly and for issuing anexemption of unlawful size. The court battle was protract-ed and the first instance decision was not issued for threeyears. However, the environmental group received a tem-porary injunction early in the proceedings, preventing anydevelopment or construction from occurring in the naturereserve during the entire three-year period.

NABU eventually won the case. Perhaps more impor-tantly, the injunction ensured that the victory accomplishedits objective, because the investor could not begin con-struction while the court case was pending, and the naturereserve remained untouched. Further, by preserving thestatus quo, the injunction kept the final outcome of the casein suspense, which increased the interest of the local com-munity, who followed the case and saw important legalrequirements played out before them. Had constructionbegun while the case proceeded, the legal proceedingsmight have been easily dismissed by the public as irrelevantto the method by which decisions are “really” made.

Injunctions also can significantly reduce overall courtexpenses and greatly increase the timeliness of legal deci-sions. Netherlands Case 2 (the “Indispensable” PesticidesCase) clearly demonstrates these points. The case involveda variety of pesticides that were illegal under Dutch and EUlaw, but for which a special exemption was given througha ministerial regulation, on the theory that they were “indis-pensable” to Dutch agriculture. During the first instancetrial, the administrative court provided injunctive relief tothe plaintiff, preventing the pesticides from being used dur-ing the spraying season. After the first instance victory, theagricultural interests successfully lobbied for a new law toexempt the pesticides. This was significant because anychallenge to the validity of the law would be heard not in

administrative court, but in civil court, which, for a varietyof reasons, is much less likely to grant an injunction.

As an aspect of the new law, however, there was anadministrative requirement that only those pesticides forwhich new applications had been submitted would beconsidered registered under the law. When the list of pes-ticides with completed applications was published, theplaintiff took the view that this amounted to an “adminis-trative decision” — an affirmative act to register these pes-ticides — and proceeded to challenge this decision inadministrative court. Informed that this case would beheard in administrative court, and realising that anotherinjunction was likely, the ministry announced one daybefore the hearing that none of the pesticides could beused that year because it realised upon further review thattheir applications for the new legal exemption wereincomplete.104

In order to save face, the ministry backed down ineffect from defending the new law, because it anticipatedan injunction would be granted. Clearly, the ministry wasprepared to defend the new law in civil court. With noinjunction in place, spraying could have begun, even whilethe civil court case proceeded.

Making injunctive relief a reality among allparties to the Aarhus Convention

Recognising the unique aspects of the injunction inenvironmental litigation, article 9(4) of the AarhusConvention specifically states that the remedies of accessto justice procedures under articles 9(1), 9(2) and 9(3) shallinclude injunctive relief. However, practice and experiencewith injunctive relief vary greatly throughout the region. Inmany countries that are signatories or parties to theConvention, injunctions are structured with vague provi-sions or other procedural requirements that greatly curtailor eliminate their effectiveness. The challenge for imple-mentation is to ensure a coherent legal framework forinjunctive relief, so that it is available consistently andemployed effectively in all cases arising under article 9.

Obstacles to effective injunctionThe case studies highlight a number of successful uses

of injunctive relief, as well as many instances of currentobstacles to effective usage. Some obstacles render injunc-tions too expensive or financially risky, while other sys-temic problems generally discourage their use altogether.

Bond paymentWhen issuing an injunction, courts in many countries

may require the plaintiff to post a bond to cover the lossesof the party that is forced to stop its activities.105 If theplaintiff ultimately loses its case, the bond is then used tooffset the damages. Typically, these damages are both dif-ficult to calculate and potentially enormous, well beyond


C H A P T E R 6 : R E M E D I E S

the means of NGOs and ordinary citizens, thus making thisrequirement the single greatest obstacle to the effective useof injunction in many UNECE countries.

In Russia, for example, there is no formula by whichthe bond amount is calculated. The decision is left to thejudge’s discretion, with no guidelines to inform his calcu-lations. There is not even a standard when the bond itselfis required: a defendant must first request it, and then thecourt, in its discretion, determines whether or not torequire it. Again, there are no standards to guide the judgein this determination. The situation is the same in otherEECCA countries, with the result that complainants areoften prevented from seeking an injunction.

Threat of defendant lawsuitsClosely related to the problem of bond requirements

is the possibility in many countries that a defendantwhose activities have been halted by an injunction maysue the plaintiff for damages if the plaintiff loses the case.The magnitude and uncertainty of such damages are asonerous for complainants as the bond requirement, cre-ating another major financial obstacle to the effective useof injunction.

For example, in Moldova Case 1 (the Sarmi Park Case),the first instance trial court granted an injunction at therequest of the plaintiff. However, upon appeal to the Courtof Appeals and the Supreme Court, the defendant made itclear that, if the plaintiff requested another injunction butultimately lost the case, it would bring a legal action to“request payment of damages.” Faced with this potentiallyenormous financial liability, the plaintiff refrained fromrequesting the injunction.106

Similarly, in Georgia Case 2 (the Vake Park Case),lawyers representing the plaintiff hoped to secure aninjunction against a company seeking to construct a hotelin a park in Tbilisi. However, the plaintiff feared that thedefendant would sue him for damages if the case waseventually lost. The potential damages resulting from adelay in completing and operating a 16-storey hotel wereunknown, but potentially enormous. For this reason, theclient refused to pursue an injunction.107

Lack of judicial capacity and independenceIn addition to a lack of standards to guide consistent

practice, other common hindrances to the effective use ofinjunctions include a lack of understanding about injunc-tions within the judiciary, and a lack of judicial independ-ence (see chapter 5 above). Judges in many countries,especially those in courts of first instance where injunctioncases are usually heard, may be unfamiliar with its use.While the process of appeal can and does act as an impor-tant check on lower court decisions, appeal courts in manycountries are also faced with relatively undeveloped lawand practice regarding injunctions, making the appealprocess an unsure mechanism in ensuring the fair use of

injunctive relief. In many countries, this problem is com-pounded by the judiciary’s unfamiliarity with environmen-tal law in general.

Lack of enforcementAnother obstacle that hinders effective injunctive relief

is the lack of proper enforcement of issued injunctions.While courts issue injunctions, a bailiff, the police, oranother government official is usually responsible forensuring that injunctions are obeyed and that those whoviolate an injunction order are punished. In several coun-tries, however, these agents do not perform their function,rendering the injunctions meaningless.

In Armenia Case 1 (the Victory Park Case), injunctiverelief was not available to the Environmental PublicAdvocacy Center in its fight to prevent illegal constructionin Victory Park. Furthermore, even in countries whereinjunctions are enforced, this enforcement is oftendelayed, resulting in needless environmental harm.108 Inthe Netherlands, enforcement of an injunction issued by anadministrative court is often left to the administrativeagency with jurisdiction over the matter. If the agency isunwilling or slow to require compliance with the injunc-tion, the plaintiff must return to the administrative court tocompel the agency to take enforcement steps, or must goto the civil court to ask for an order compelling compliancewith the injunction. These additional steps result in furtherexpense and delay before an injunction is enforced.

Strategies for effective injunctive reliefWhile the obstacles described above are varied and

complex, there are a number of concrete steps that can beconsidered to ensure coherent and effective injunctiverelief under article 9(4). Considering the magnitude of theobstacle to citizen advocacy posed by bond requirementsand defendant lawsuits, these provisions should be a pri-mary target of reform.

Eliminating the bond and defendant lawsuit barriers

The simplest approach would be to eliminate bond anddefendant lawsuit provisions altogether in countries wherethey still exist. In many countries with well-developedinjunction practice, bond requirements and defendant law-suits are not in use. Another option is to retain these pro-visions, but to establish fixed limits on the amount of bondor potential defendant damage recoverable in a publicinterest case. For example, in order to obtain an injunction,a citizen or NGO could be required to post a bond of 50minimum salaries. Such an amount, while not insignificant,is within the ability of many public organisations and advo-cates. Known as the “symbolic bond” approach, such anappropriate fixed limit would serve to ensure that plaintiffsonly sought injunctions in pressing cases where they



believe they have a strong chance of prevailing on the mer-its in the final decision, thus addressing one concern thatthe bond and lawsuit provisions were presumablydesigned to alleviate.

In addition to limiting the cases in which plaintiffswould seek injunctions, however, bond and lawsuitrequirements are also intended to address another issue.An enterprise that is forced by injunction to cease its activ-ities suffers large financial losses as a consequence, and isoften otherwise unable to recover these losses if it eventu-ally wins on the merits. In seriously considering the elimi-nation or reduction of bond and defendant lawsuit provi-sions, this issue must also be addressed.

Many countries have responded to this problem bydeveloping precise legal standards for when an injunc-tion may or may not be issued. While the wording ofthese standards varies from country to country, the endresult is the same. Injunctions are used in limited circum-stances, when the potential for irreversible harm is great,and only after a variety of factors, including economicimpact, are considered.

In Hungary, an injunction may be issued (1) if it is“indispensable” to avert damages; (2) to avoid a changein the factual basis of the legal proceedings; or (3) if nec-essary in other instances deserving special attention. Ifthe court finds that any one of these conditions is satisfiedprior to issuing the injunction, it must further find that theharm caused by the injunction will not exceed the advan-tage gained by its issuance.109 This legal test allows thecourt the flexibility to decide whether an injunction isappropriate on a case-by-case basis, while at the sametime creating a standard that each party to the proceedingcan understand and use to argue whether the injunctionis necessary.

In the US, courts have developed various methods tobalance the interests involved in an injunction proceeding.According to the US Supreme Court, the plaintiff mustshow that, if the injunction is not issued, he will suffer“irreparable injury” and that he is likely to prevail on themerits. However, courts must weigh carefully the interestsof both plaintiff and defendant in making their determina-tion. Interpreting this standard, many US courts use a four-part test: 1) the significance of the threat of irreparableharm to the plaintiff if the injunction is not issued; 2) thebalance between this harm and the injury that granting theinjunction would inflict on the defendant; 3) the probabili-ty that the plaintiff will succeed on the merits; and 4) thepublic interest.110

In the Netherlands, a large number of judges havegrappled over the years with the merits of issuing aninjunction in a wide variety of cases. Thus, according to aDutch environmental lawyer, a sort of “case law” systemhas developed, where both judges and lawyers know thetype of case where an injunction is appropriate. The stan-dard employed by a Dutch judge is roughly akin to the US

standard in assessing 1) whether there is justification totake “immediate measures”; 2) whether action is necessaryto maintain a “balance of interests” that may otherwise bealtered in the absence of an injunction; 3) whether theprobable duration of the case would impede justice if aninjunction is not used; and 4) whether the plaintiff is likelyto succeed on the merits. While unwritten, the test is clearand, most importantly, is well understood within the Dutchlegal community, which compels a high degree of consis-tency and accountability.111

Recognising the potential impact on the party orderedby injunction to cease an economic activity, these stan-dards function on two levels. First, they reflect a socialchoice expressed through law that, when an injunction isemployed, the risk of economic harm to the party orderedto cease its operations will be greatly outweighed by otherimportant factors and therefore can be tolerated. Second,these standards provide a consistent and transparent testby which the legal system can determine when an injunc-tion is appropriate. In countries using these or similar stan-dards, bond or defendant lawsuit provisions are notemployed. The legal standards are in and of themselves themanner in which these societies balance interests and man-age the risk of economic harm to the defendant.Consistently implemented, these standards thus enable theeffective application of injunctive relief in all appropriateinstances without imposing unreasonable financial bur-dens on those plaintiffs seeking it.

Georgia provides another approach to eliminatingbond and defendant lawsuit problems. Article 29 of thenew Georgian Code of Administrative Procedure states:“Bringing of an action in the [administrative] court shallresult in the suspension of the concerned administrativeact.”112 Considering that an underlying administrative actis involved in the vast majority of environmental lawcases, this provision serves as an automatic injunction. Forexample, Russia Case 3 (the Shrinking Park Case),Germany Case 4 (the Nature Preserve Case), MoldovaCase 1 (the Sarmi Park Case) and the Netherlands Case 2(the “Indispensable” Pesticides Case) all involved anunderlying government decree, permit or other adminis-trative act that enabled an activity potentially damaging tothe environment to occur. Under Georgian law, by begin-ning a case in an administrative court that challenges theunderlying administrative act, the requisite legality of theactivity is also removed, thus requiring that the activityitself ceases. This automatic injunction remains in placeuntil the final court decision, and, since the injunctionactually directly refers to an administrative act rather thanthe economic activity enabled by such an act, there is nobond requirement, and no possibility of a defendant law-suit for damages.

The above approaches provide concrete, focusedmeans by which bond and defendant lawsuit provisionscan be reformed in the use of injunctions. However, broad-


C H A P T E R 6 : R E M E D I E S



er efforts are also necessary, such as focused training toincrease judicial understanding of how injunctions oper-ate, training for court personnel responsible for enforcinginjunctions and measures to increase judicial independ-ence so that courts are empowered to use this instrumentto its full potential. Some of these measures can be accom-plished in the short term through revisions to specificcodes or training programmes, and others are long-term,structural reform efforts. Both short and long-termapproaches should be employed to ensure that all coun-tries becoming a party to the Convention can employinjunctions that are effective and readily available.

DamagesThe main problem in the use of damage remedies in

environmental cases is that most environmental damage isirremediable. By putting a price on natural resources andthe environment, some might think their destruction isensured. Nevertheless, damage remedies where incidentalloss to personal property or other interests occurs are avery useful tool in encouraging people to bring environ-mental cases forward. As Kramer stated:

“As it is not known how the public (general) interest‘environment’ can best be represented in dispute set-tlement procedures, the second-best solution consistsin counting on the selfishness of citizens and allowingthem, when defending their own interests, also to raisearguments and provisions which serve to protect theenvironment.”113

The issue of damages is one that deserves furtherstudy. One point can be made here related to the possibil-

ity of “non-material” damages. In some Western legal sys-tems, most notably that of the US, courts have the possibil-ity to award punitive damages, that is, damages that are notdirectly related to the actual harm caused, but are imposedto punish particularly offensive conduct or to deter similarbehaviour by making an example. Many legal systems donot allow the award of punitive damages. Nevertheless,even in countries where punitive damages are not allowed,a similar mechanism may be available. This is an award for“moral” damages. Moral damage awards are in theoryrelated to actual harm suffered, and therefore are not puni-tive, but the harm is non-material in the sense that itinvolves psychological harm or moral offence. As this sortof harm is difficult to quantify, the tribunal has wide lati-tude in effect to determine the amount of moral damages,and can award an amount that has the same punishing ordeterrent effect of punitive damages in other jurisdictions.An example of such a case from Ukraine114 forms part ofthe case studies. Moral damage cases also have the advan-tage of a developed practice with respect to quantification.Novel situations that might pose difficulties of quantifica-tion for material damages could be at least partiallyaddressed through moral damage actions. Another exam-ple from Ukraine115 involved residents of the “sanitaryzone” around a factory using extremely hazardous chemi-cals in its operations, who learned about serious environ-mental violations at the plant. While it would have beendifficult to prove particular exposures, it was easy to estab-lish that the residents were placed in constant fear of suf-fering severe health problems. The possible need todefend against a claim for moral damages may often be anincentive for operators of such facilities to comply fullywith environmental regulations.

Financial considerations can be an effective barrier toaccess to justice in many cases. The influence of costs onthe decision whether to seek justice is obvious. Many coun-tries have fashioned rules for the reduction of cost barriers,including waivers and fee shifting. In addition, govern-ments can limit the opportunities for organisations to gainaccess to justice through restrictions on NGO registration.This chapter examines some of the issues and some of themechanisms that have been developed to reduce financialand other barriers to access to justice. Further informationon financial barriers related to injunction bonds and defen-dant lawsuits appears in Part I, chapter 6 above.

Court fees Tariffs or court fees to initiate a lawsuit can effectively

prevent members of the public and NGOs from accessingthe courts. Court fees for administrative cases, as opposedto civil cases, are generally not prohibitively expensive. Insome countries, such as Poland,116 the costs of administra-tive proceedings are relatively low compared to civil pro-ceedings, which is helpful to NGOs challenging EIAs andbringing other kinds of administrative cases. Some coun-tries provide for a waiver of, or reduced, administrativefees (e.g. Estonia and Hungary), which is limited to classesof individuals set forth in national legislation.117 InSlovakia, environmental organisations, foundations, andcharitable and humanitarian organisations are exemptfrom paying administrative court fees altogether.118

However, Croatian law specifically excludes NGOs fromsuch a waiver, and it is available to individuals only.119

Civil cases present a greater economic barrier thanadministrative cases. Many Central European and EECCAcountries charge a percentage of damages to initiate a civilsuit (see Part 1, chapter 6 on injunctions). For example, inBulgaria and Hungary, court fees in civil procedure casesare equal to 4 percent and 6 percent, respectively, of therequested or estimated damages.120 Likewise, in Slovenia,fees are a percentage of the value of the subject matter of

the litigation and can be quite high.121 Often, these costscan amount to several months of the average wage.

Administrative and civil fees are all the more onerousfor plaintiffs because they often must be paid upfront.Although a plaintiff may be able to recover the fees shouldhe or she prevail in the litigation, as discussed below, theup-front cost often prevents a party from bringing a case tocourt. One case in Ukraine involving thousands of youngchildren in villages surrounding a mine site who wereexposed to excess levels of fluoride in their drinking waterand suffered severe health problems, could not go for-ward.122 Even though Ukraine recently changed its law,reducing civil court fees from 5 percent to 1 percent ofdamages, initiation of this suit, where damages are high,would be close to USD 1,000, an amount beyond themeans of the local villagers.

Clearly, these issues need to be addressed by nationallegislation, and some countries have taken steps to elimi-nate these barriers. Poland has taken steps to reduce theburden of administrative court costs by initiating a “one-way shift,” whereby a public authority may be ordered byan administrative court to pay the other party’s court cost,but public authorities are not entitled to have their costsrecovered. These are positive steps forward and othercountries can take similar steps. In order to eliminate finan-cial barriers, each country should promulgate comprehen-sive legislation eliminating or reducing administrative andcivil costs up-front.

Costs of expertsFees for expert testimony can be a financial barrier in

many cases. In some countries, such as Spain, courts mayassume the costs of experts who are necessary to advisethe court and aid it in coming to a verdict.123 Judges oftenhave the discretion to decide which party to a disputeshould bear the costs of experts. A creative solution onhow to arrange for the inexpensive testimony of expertswas found in United States Case 1 (the Telephone Case). In


Chapter 7Financial and other barriers

Lynn Sferrazza

this case, brought by the University of Oregon’sEnvironmental Law Clinic in the mid-1980s, the practicalbarrier of NGOs or individuals being able to arrange expertwitnesses to testify on their side in court was overcome.The plaintiffs faced a problem to find experts to testify ontheir side about the scientific inadequacy of the environ-mental impact statement. Several were willing to testify,but could not spend the time or money to fly to Oregon forthe trial, and their clients could not afford to pay them evenif they had the time. The judge in this case proposed aninteresting solution — for several witnesses to testify bytelephone. At first, government lawyers objected, sayingthat they wanted to be able to cross-examine the expertwitnesses in person, in front of the court. But the courtaccepted the argument that the quality of a scientist’s testi-mony and evidence has little or nothing to do with how hisface or body language appears during a court appearance.Arrangements were made for a “telephone trial” and theclinic put on nine of their 11 witnesses in this manner.

Legal aidSome European countries have promulgated laws that

defray attorney fees and other costs and expenses, andnegate the disincentive to bring public interest actions. Forexample, German law provides that a party may apply forlegal aid if it is unable to bear the costs of the action, andfailure to pursue or defend the matter in court would con-travene the general public interest.124 In order to receivelegal aid, the lawsuit must have a reasonable prospect ofsuccess and must not be deemed frivolous.125

United Kingdom Case 2 (the Agricultural Storage Case)illustrates the benefits of free or government subsidisedlegal assistance. The British legal aid scheme was replacedin 2000 by the Community Legal Service Fund of the LegalServices Commissions. The new system introduces addi-tional requirements for eligibility and ensures that the max-imum recovery of legal costs will be achieved. In theNetherlands, members of the public can apply for freelegal assistance from the environmental branch of a publiclitigation service.

Public interest environmental law organisations withdonor support operate in many Central European andEECCA countries. Examples can be found in Bulgaria, theCzech Republic, Hungary, FYR Macedonia, Moldova,Poland, Russia, Slovakia, Ukraine and Uzbekistan, amongothers. They may offer free legal services to the public inenvironmental cases, or in some cases may employ a slid-ing fee scale based on the financial resources of the client.

In addition, law firms or individual lawyers in manycountries have a professional duty to provide free or low-cost legal services to those who cannot afford them. Thispro bono requirement can be addressed in many ways,one of which is to take on public interest environmentalcases. In some jurisdictions, care must be given to ensure

that legal requirements are met. In England and Ireland,for example, the tort of maintenance can occur under cer-tain circumstances where an outsider to a matter underlitigation gives support to one side or the other. Courts inIreland have held that the tort of maintenance does notapply when there is a community of interests, as wouldoccur in most public interest cases. In cases of compen-sation for environmental harm, however, the outcomemight be different.

Fee shiftingWhile court fees may present a barrier, as discussed

above, the greater cost comes if the NGO is paying attor-ney market rates and/or if expert testimony is required, asis often the case. In this event, financial obligations canrise dramatically. In some countries (e.g. Moldova), plain-tiffs must also pay witnesses to appear. Thus a party’s ownlitigation costs may be very high. In addition, becausemost European countries follow a “loser pays winner” sys-tem, a losing party may be required to pay the attorneyfees and costs of the prevailing party as well. In theAmerican system, each side generally pays its own costs.Each system presents obstacles as well as opportunitiesfor access to justice. With some legislative modifications,as discussed below, each system can create incentives forpublic interest litigation.

In the European “loser pays” system, the loser general-ly pays the winner’s court costs and attorney and expertfees. The most obvious difficulty with this system is, shouldan NGO lose a suit, fees are often very high. While this sys-tem deters frivolous lawsuits, it also deters meritorious law-suits and/or suits that present novel questions, due to aplaintiff’s fear of losing and being faced with a large fee.Nonetheless, this system could be beneficial to NGOsbecause lawyers could be encouraged to take meritoriouscases pro bono, with the knowledge that they would becompensated if they won the action.

Several problems are presented, however, stemmingfrom national legislation in various countries. In Ukraine,for example, a provision of the Code of Civil Procedurestates that, if an advocate provides legal services free ofcharge, the court may order the losing party to pay theequivalent of the cost of attorney fees — not to the pre-vailing party, but to the state.126 Legislation in Bulgariapresents similar barriers. There, a victorious party cannotbe awarded costs in an administrative case, and can onlyrecover partial fees and expenses in civil cases. These lawsnegate the incentive built into the loser pays system — feerecovery if victorious — by not allowing fee recovery forpro bono work or only allowing partial recovery.

Even if an NGO is victorious and granted fee recoveryby the courts, implementation of the fee award remains anoverriding issue in many countries. For example, in UkraineCase 2 (the Oilfield Information Case), plaintiffs prevailed



in their action but faced difficulties in collecting fees andcosts from the defendants (the State Geology Committee)and ultimately received very little reimbursement.

The loser pays system presents opportunities forNGOs to the extent that it can encourage attorneys to takeon pro bono cases that attorneys feel are meritorious. Thiscan be achieved by promulgating new legislation in coun-tries with loser pays systems, such as Germany, whichprovide for legal aid in public interest cases. In addition,laws preventing fee collection (e.g. Ukraine and Bulgaria)need to be revised and the implementation of a fee awardmust be guaranteed.

The American system presents different opportunitiesand obstacles. In the American system, each side generallypays its own costs. Clearly, one advantage of the system isthat an NGO that is unsure of ultimately prevailing in a casewill not be dissuaded from bringing the case because offear of being slapped with fees.

In addition, specific legislation provides for fee shiftingin cases against the federal government that allow an NGOor other person to recover fees and costs if they prevailagainst the government, but does not permit the govern-ment to recover fees and costs if it prevails. There areapproximately 150 federal fee-shifting statutes, including16 major federal environmental statutes. Most of the envi-ronmental fee-shifting statutes provide as follows:

“The court may award costs of litigation (including rea-sonable attorney and expert witness fees) to any pre-vailing party or substantially prevailing party, whenev-er the court determines such an award is appropriate.”

Under the Equal Access to Justice Act — which pro-vides for fee shifting in any suit against the federal govern-ment (not only environmental suits) — a party that prevailsagainst the federal government, whether defendant orplaintiff, may recover attorneys’ fees up to a specified cap,along with expert and other costs, if the prevailing partycan demonstrate that the government’s position was notsubstantially justified.

In all these fee-shifting provisions, the stated goal ofthe US Congress was to encourage citizen lawsuits in orderto achieve compliance with federal statutory policies. Thestatutes seek to create an incentive for commercial andpublic interest lawyers to represent citizens pro bono byproviding a structure where lawyers can be reimbursed fortheir legal services if victorious. Reimbursement of fees andcosts is not guaranteed, however, and the statutes express-ly delegate discretion to the courts to determine whether afee award will be granted and what the amount would be.

Thus, the American system creates an incentive forcommercial and public interest lawyers to provide probono services to NGOs and citizen groups because lawyersmay recover fees for their services if victorious. However,the cost of litigation, including the hiring of experts andother standard expenses, which can be quite high, still

presents a barrier or disincentive to bring litigation becausethese costs must be fronted by the plaintiff. In addition,even if a plaintiff prevails, the amount of fee recovery iswithin the discretion of the court and plaintiffs may notrecover all of their expenses.

These problems aside, the American system has fos-tered public interest litigation and many public interest laworganisations have come to rely on fee shifting to sustaintheir organisations. Fee shifting has been liberally allowedby most courts in public interest litigation, granting fee andcost recovery in cases where the parties settle in a mannerfavourable to the plaintiff and in cases where the plaintiffhas partially prevailed.

Until recently, courts have even allowed fee and costrecovery under the “catalyst theory,” whereby fee recoveryis allowed in instances where the plaintiff’s lawsuit com-pelled the defendant to comply voluntarily with the plain-tiff’s demands in the action. The “catalyst theory” was recent-ly overturned by a US Supreme Court holding that voluntaryactions are not enough to compel a fee award. Instead, theremust be a court-ordered consent decree, or some kind ofjudicially sanctioned change in the relationship between theparties, in order for a court to grant a fee award.127 This caseis a big blow to American NGOs, because lawsuits mayoften go on for years before the defendant “voluntarily”agrees to change its course of action. Until now, courtsrecognised that such “voluntary” action would not haveoccurred but for the plaintiff’s suit and many courts grantedfees and costs based on this premise.

Both the American system and the European loser payssystem have the potential to foster public interest litigation.The loser pays system seeks to make the winner whole andcan be implemented with a degree of flexibility that neednot discourage public interest litigation. The German lawproviding for legal aid in public interest cases is an excel-lent example of this.

Another incentive for public interest litigation is the“one-way fee shift.” According to this concept, which onlyapplies to a certain type of public interest litigation, includ-ing environmental or human rights cases, plaintiffs canreceive costs under the loser pays system when they pre-vail, but do not have to pay if they lose, so long as the casehad reasonable grounds. Thus, plaintiffs would not bepenalised for failing to prevail in an action that presents aquestion of general public interest.

Another method is simply to create legislation thatexempts public interest plaintiffs from fee shifting alto-gether so that NGOs would not get slapped with fees ifthey lost a suit. However, in this event, NGOs would alsonot benefit from recovering costs if they prevailed. Thus,simply exempting public interest litigation from fee shiftingrelieves some of the risk but does nothing to create incen-tives for lawyers to take on public interest suits and fosterpublic interest litigation. The one-way shift best achievesthis result.


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In short, as with administrative and civil court fees, leg-islation is necessary to temper the sometimes harsh resultsof a loser pays system and foster the development of pub-lic interest advocacy.

Aggregating small claims The pervasive and incremental nature of environmen-

tal problems often makes it difficult for them to be takenup through traditional access to justice means. The burdenin terms of time and money in bringing forward a smallclaim often outweighs the particular harm, but if numeroussmall claims can be aggregated in some way, then a realproblem can be addressed. In some jurisdictions, a tribunalcan certify representatives of a particular group of personsin similar circumstances to bring forward a case on behalfof the group (the class action). Specific rules govern thenotification of other persons who might classify for thegroup, their options for opting in or out, and the preclusiveeffect of judgements in the class action vis-à-vis separateclaims, among other issues. Actio popularis (see Part I,chapter 4) may also provide a mechanism for addressinglarge numbers of small claims.

Restrictions on NGOsEven under the Aarhus Convention, which requires

recognition of unregistered groups in some circumstances,it is often important for an NGO to acquire the status of a“juridical person” because without this the NGO does nothave certain rights, including the right to challenge anadministrative decision. The registration process, tax statusand other restrictions imposed on NGOs in many countriesdeter people from forming NGOs.

In Ukraine, in order to acquire the status of a juridicalperson, an organisation must register with the state.Procedures of registration vary depending on the type ofentity. Only a fully registered juridical person, for example,can obtain a seal (necessary to make its documents offi-cial), open a bank account, enter into contracts or be aparty to litigation. A non-registered entity does not haveany of these powers.

In order to be fully registered, an NGO must: (1) hold

a meeting of those who want to join the NGO and pass adecision on creating the NGO; (2) create a charter; and (3)obtain approval of this charter from the Ministry of Justice(for National and International NGOs) or its local depart-ment (local NGOs).

After these procedures are complete, an NGO is givenone month only to register with eight other governmentagencies.128 Unless an NGO completes these procedureswithin one month after its registration with the Ministry (orlocal department) of Justice, the head of the NGO may becharged with an administrative offence (misdemeanour).

Assuming an NGO gets through this process, the NGOmust submit quarterly reports on its activities to the statetax authority and other specified bodies.

TaxationWhile NGOs in many countries enjoy preferential tax

treatment, some countries impose significant tax burdenson NGO activities. Certain activities considered normal forNGOs in some countries would possibly endanger tax-freestatus in others.

In Ukraine, for example, attorneys fees and costsrecovered after prevailing in a lawsuit, or the sale of a bookon environmental rights prepared by an NGO, may beconsidered profitable income, and may result in the organ-isation being removed from the Register of Non-Commercial Organisations, which would oblige it to payincome tax. Further, due to the restrictions of value-addedtax (VAT) law, NGOs usually do not engage in sellinggoods or providing services, fearing exclusion from theregister. This prevents NGOs from raising funds throughthe sale of products such as T-shirts, calendars, and otheritems, a practice regularly engaged in by NGOs in manycountries. Finally, donations to NGOs are limited, since anthey must pay income tax on any portion of the donationexceeding 4 percent of their total funds.

In large parts of the UNECE region, however, tax lawsprovide incentives for the formation of public interestNGOs, and for individuals and corporations to providedonations to them. These long-standing laws are fully sup-ported by government and the citizenry and demonstratethe important role played by NGOs in civil society.


Citizens and NGOs in many UNECE countries are feel-ing the impact of a disturbing new trend — they are gettingsued for presenting testimony at public hearings, collectingsignatures on petitions, filing lawsuits when environmentaland other laws are violated, or otherwise speaking outabout issues of public interest.129 These lawsuits arereferred to as “strategic lawsuits against public participa-tion” (SLAPPs).130 SLAPPs are obstacles to ensuring that cit-izens have access to justice and in implementing theAarhus Convention. This section presents a brief generaloverview of SLAPPs.

It is well documented that SLAPPs are used to deterpublic participation in the US and there is evidence that theuse of SLAPPs is spreading to Canada, the UK, Russia andKazakhstan. It is likely that SLAPPs are used in many otherEuropean countries, although they may not yet be recog-nised as a specific legal tool used by opponents to publicparticipation.

What are SLAPPs?A SLAPP is a type of civil lawsuit filed against an NGO

or individual for speaking out about an issue of publicinterest.131

SLAPPs are successfully used to deter people fromexercising the right to speak out about issues of publicinterest and the right to ask the government to correct awrong. SLAPPs have an impact on the democratic processby decreasing citizen willingness to enforce rights, to par-ticipate in policy-making, or to act as “watchdog” over gov-ernment agencies. The targets of SLAPPs must oftenendure several expensive years of litigation before a courtrules in their favour.

Courts in at least one UNECE country view SLAPPs asefforts to penalise the exercise of constitutionally protect-ed liberties. US courts that dismiss SLAPPs often cite thepetition clause of the First Amendment of the USConstitution, which guarantees “the right to petition theGovernment for a redress of grievances.”132

SLAPPs identified in case studiesIn at least two case studies, citizens attempting to par-

ticipate in government decision-making were targets ofSLAPPs. In Kazakh Case 3 (the Excessive Fees Case), anindividual spoke out at a public hearing about pollutiondischarged by a company. The citizen’s testimony con-trasted with the testimony given by a representative of alaboratory hired by the company. The laboratory filed alawsuit against the individual, claiming the individualinjured the laboratory’s reputation. Ultimately, the claimwas unresolved, but the citizen had to pay for representa-tion in the case. Cases like this will discourage people fromspeaking out at public hearings.

In Russia Case 2 (the Nikitin Case), the Russian gov-ernment charged a former captain in the Russian Navy withtreason through espionage, disclosure of state secrets andother crimes for preparing a report that included informa-tion about the possible radiation hazards of some Russiansubmarines and nuclear waste storage sites. AlthoughNikitin was ultimately acquitted, he spent five years fight-ing the charges (at considerable expense). During part ofthis period, Nikitin was held in custody. Even when he wasnot in custody, his movements were severely restricted.Nikitin’s case is an extreme example of the harassment cit-izens may face for speaking out, but it is not the only exam-ple. Certainly other citizens will think twice about advocat-ing for the environment after Nikitin’s experience.

Responding to SLAPPs —SLAPPbacks

In order to deter SLAPPs, Pring and Canan suggest thattargets should “SLAPPback.” They state, “[t]he most prom-ising prevention and cure for the SLAPP phenomenon … is… the ‘SLAPPback’: a countersuit in which the targets turnthe tables and sue the filers for the injuries and lossescaused by the SLAPP.”133 Violation of constitutional orother rights, abuse of process or tort claims, such as outra-

Chapter 8Strategic lawsuits against

public participationJennifer Gleason



geous conduct, are examples of legal theories that can beused in filing SLAPPbacks. 134

Perhaps the two most common claims in a SLAPPbackare malicious prosecution and abuse of process. ManySLAPPback cases end in settlements, so the final outcomeis not reported.135

Legislative responses to SLAPPsOne way to ensure that SLAPPs do not continue to

deter public participation is to enact anti-SLAPP laws.Some UNECE and other countries have adopted laws dis-couraging SLAPPs.136 It is in the interest of governments topass anti-SLAPP laws to ensure that citizens are able to par-ticipate in the government decision-making process and tostop filers of SLAPPs from misusing courts to deter citizensfrom participating in government. SLAPP filers are oftentrying to silence citizens and take a debate out of city hall,where many people can participate in the discussion andwhere elected officials will make a decision. Anti-SLAPPlegislation needs to protect targets without interfering withthe right to bring grievances to court.

Several groups came together to draft a model anti-SLAPP bill for the US.137 This bill could serve as a model touse in drafting anti-SLAPP bills in other UNECE countries.The bill states in part:

“Acts in furtherance of the constitutional right to peti-tion, including seeking relief, influencing action, inform-ing, communicating, and otherwise participating in theprocesses of government, shall be immune from civil lia-bility, regardless of intent or purpose, except where notaimed at procuring any governmental or electoral action,result, or outcome.”138

The draft bill ensures that, when a SLAPP is filed, thetarget can move to ask the court to dismiss the case. The

case will be put on hold while the court determineswhether it is an illegal SLAPP case.

139The burden of proof

is put on the SLAPP filer to demonstrate that the case is nota SLAPP, but a legitimate attempt to petition the court toaddress a grievance.140 If the court agrees that the case wasa SLAPP and dismisses the case, the SLAPP target will beawarded the costs of litigation and attorney fees. The courtmay also require the SLAPP filer to pay sanctions to deterfuture SLAPPs.141 If a person is injured by the SLAPP, he orshe may seek compensatory and punitive damages fromthe party that filed it.142

Protecting public participationWhile SLAPPs and other methods of intimidation have

an impact on public participation in some UNECE coun-tries and are likely to spread throughout the region, it is nota reason to stop participating. Information has to be spreadwidely about the use of these tactics so that courts willmore easily recognise them as intimidation and harass-ment. Governments should also be encouraged to protectpublic participation by making it illegal to file SLAPPs inthe first place.

The following list of conclusions and recommenda-tions is based on the analysis and the cases received. Thislist cannot cover all issues in detail and does not purport tobe applicable to all legal systems within the UNECE region.It will be up to individual states to determine those meas-ures that are most applicable to their situations. However,the following items might give some indication of possiblepractical, legal and institutional steps that parties and otherstates may wish to take in line with the access to justiceobligations under the Aarhus Convention. They are divid-ed according to subject matter.


Legal/administrative issues

1. States should assess whether cases proceed in a timelyfashion and should take measures to ensure their expe-ditious consideration. This may include reducingincentives for delay.

2. Tribunals should hold authorities to a standard inresponding to claims by the public.

3. Tribunals should treat cases seriously where authoritiesdo not give proper attention to complaints. More care-ful consideration of the complaints by the authorities islikely to be the result.

4. Tribunals should be able to dismiss cases brought byauthorities where authorities have not shown a suffi-cient case (rather than returning the case time andagain for further investigations).

5. Courts and other tribunals should be equipped withdirect powers (backed up by officers with sufficientresources and authority) sufficient to enable them toadminister justice effectively. This includes the possi-bility of imposing penalties on persons who do notobey orders to appear or who do not otherwise followcourt instructions. Penalties should be established witha view to compel obedience to the tribunal.

6. States should take measures to improve the efficientenforcement of judgements of courts and other tri-bunals. The tribunals should have direct powers, asabove, but prevailing parties in disputes should alsohave the assurance that the decision of the tribunal willbe followed by the losing party. Incentives for follow-ing or ignoring decisions should be studied and meas-ures should be taken to strengthen systems in thosecountries with poor records in this respect. The optionof imposing personal liability on authorities or officersof private enterprises must be available where neces-sary (in extreme circumstances).

7. States should consider the benefits of allowing tri-bunals, under certain circumstances, to issue declarato-ry or explanatory rulings (advisory opinions), relevantto matters under consideration before other bodies.Where this is not allowed by law, or is not currentlyemployed, states should consider making the neces-sary legal, administrative or other changes.

8. States should support further comparative work in thefield of environmental impact assessment, ecologicalexpertise, strategic environmental assessment, andother forms of biosphere reflection, with a view toassess whether the various practices in place providean effective means for public participation in decision-making. This comparative work should study, interalia, the relationship between the various forms andpractices, and the necessity for recourse to justice.States should be open to the adoption of new laws andpractices based on the exchange of views.

9. States should apply clearer standards in determiningwhen a decision-making process has potential environ-mental impacts in order to avoid claims by the public.

10. States should enhance due process and other protec-tions in administrative reconsideration and appealsprocesses in order to provide a meaningful opportuni-ty for justice without the need for judicial appealexcept in the most exceptional cases.

11. States should consider the establishment of tribunalswith specially trained judicial or administrative judgeswith specific jurisdiction over environmental disputes.

12. States should exchange experiences on the generalstandards for due process and the effective administra-tion of justice in their countries, covering matters suchas timeliness, double jeopardy, res judicata and others.

Chapter 9Conclusions and Recommendations

Stephen Stec



13. States should adopt mechanisms and practices for thepublication and/or dissemination of significant deci-sions by courts and other tribunals.

14. States should increase the use of alternative disputeresolution mechanisms in order to reach successfulconclusions of disputes without the need for long andexpensive proceedings. Such mechanisms includemediation, negotiation and arbitration.

Standing issues

15. Articles 9(2) and 9(3) constitute a strong affirmationthat NGOs, as well as individuals, have standing, sub-ject to reasonable restrictions, but only if the overallscheme continues to promote “wide access to justice.”To make this clear, states should transpose this grant ofstanding into national law. If states decide to establishrequirements for environmental NGOs that have stand-ing under article 9(2) of the Convention, such require-ments must be clear, consistent and fair. Standingrequirements must not be designed to discourage thebringing of claims, but must be reasonably calculatedto reach the intended result of ensuring that claims arebrought by NGOs whose activities and purposes aregenuinely focused on environmental protection. Anyrequirements that are imposed must be consistent withthe duty to provide “wide access to justice.”

16. States should provide for means to aggregate smallclaims into a legally significant unit. Various mecha-nisms may be used for this (including class actions,representative standing and actio popularis), but thegoal should be to eliminate the financial and other bar-riers to the use of legal means to address such claims.

17. In some systems, special judicial standing for parlia-mentary representatives may offer an alternative forclaims where individuals may not have standing. Thismatter bears further study.

Adequacy of remedies

18. To meet the obligation of providing adequate andeffective remedies, including injunctive relief, statesshould evaluate the application of such remedies bycourts and other tribunals. Specifically with respect toinjunctions, states should ensure that the standardsemployed by a tribunal in determining whether to issuean injunction are clear, consistent and fair.

19. States should establish methodologies for calculatingdamages, even where these are difficult to quantify.In systems where experts may be employed to calcu-late damages, states should ensure that such experts

are independently certified and use objective andneutral criteria.

20. It may be necessary in some states to specify legal testsfor causation and the calculation of damages throughnew legislation. This necessity should not be an obsta-cle to reform.

Financial issues

21. Affordable legal services must be available toaggrieved members of the public in connection withenvironmental matters falling under the AarhusConvention. Legal barriers to the establishment ofnon-profit legal advocacy organisations should bereduced or eliminated. Financial barriers to their oper-ation should be reduced. Their contribution inaddressing environmental issues in society should berecognised, including through appropriate legal andtax status. States should consider public funding ofenvironmental advocacy organisations, and also ofother related organisations, such as NGOs with scien-tific or technical environmental expertise.

22. Registration and tax rules for NGOs should be simpli-fied. In general, they should be reduced to ministerialoversight to ensure that the activities of these organi-sations are legitimate according to their publiclydeclared purpose.

23. Bond requirements in injunction cases and other casesshould be reduced. Rather than applying financial bar-riers to discourage the bringing of actions requiringinjunctive relief, specific legal tests for injunctionsmight prove to be more effective and fair, without los-ing the benefits to society of enjoined illegal behaviour.There should be a re-examination of where the risksinvolved in applications for interim injunctions in envi-ronmental cases should fall. Where financial guaran-tees are required, consideration should be given to theestablishment of a public interest fund to guaranteeinterim injunctions in the public interest.

24. As legal costs increase and opportunities for fundingbecome scarce, legal systems should be adjusted toprovide incentives for bringing successful cases in theenforcement of environmental laws. Mechanismsmight include “one-way” shifting of fees and costs, tak-ing into account the public interest.

25. Legal and administrative costs imposed by courts andother tribunals should be published according to adetailed schedule. Such costs should be easily under-stood and quantifiable at the outset of the proceedings.


C H A P T E R 9 : C O N C L U S I O N S A N D R E C O M M E N DAT I O N S

Systemic and capacity issues

26. States should dedicate substantial resources towardspublicising successful environmental cases, in order toeducate citizens about the effective use of environmen-tal rights. States should also establish programmes ofgeneral education about the use of environmental rights.

27. States should embark on training programmes forjudges, prosecutors, administrators and others whomight be involved in environmental cases.

28. It is clear from the cases arising that further work isrequired in the area of improving public participationmechanisms. This will in turn reduce the number of dis-putes arising that require recourse to legal and adminis-trative justice mechanisms further down the line.



1 CEP/WG.5/2000/2, paragraphs 45-47.

2 See Report: Complaint procedures and access to justice for citizens andNGOs in the field of the environment within the European Union. TilburgUniversity, MinVROM Netherlands, April 2000,<europa.eu.int/comm/environment/impel/access_to_justice.pdf>.

3 See Umweltbundesamt (ed), Epiney, Astrid & Sollberger, Kaspar (authors),Zugang zu Gerichten und gerichtliche Kontrolle im Umweltrecht, p. 528 ff(cited by V. Rodenhoff).

4 The preamble to the Rio Declaration refers to “the integrity of the globalenvironmental and developmental system.” Principle 4 states: “In order toachieve sustainable development, environmental protection shall consti-tute an integral part of the development process and cannot be consideredin isolation from it.” See also principle 25: “Peace, development and envi-ronmental protection are interdependent and indivisible.”

5 As Fitzmaurice has said, “International environmental law is one of themost energetic fields of international law. It appears that its contribution tointernational law will continue.” See Fitzmaurice, Malgosia, The contribu-tion of environmental law to the development of modern international law,in Makarczyk, Jerzy (ed), Theory of international law at the threshold of the21st century. The Hague: Kluwer, 1996, pp. 909-25. See also Koskenniemi,3 Yb. Int. Env. L., 1992, pp. 125-28, stating that international environmen-tal law has special characteristics, making traditional rules of state respon-sibility insufficient.

6 The importance of linking international and domestic environmental lawhas been explained by Ebbesson according to his theory on compatibilityof international and national environmental law. See Ebbesson, Jonas,Compatibility of international and national environmental law. London/TheHague/Boston: Kluwer Law International, 1996.

7 See REC, Doors to democracy: A pan-European assessment of currenttrends and practices in public participation in environmental matters.Szentendre: The Regional Environmental Center for Central and EasternEurope, June 1998, p. 26.

8 Council Directive 90/313/EEC on the freedom of access to information onthe environment.

9 Article 4(2) of the Convention.

10 Time limits for public authorities to respond to a request vary widelyfrom one Western European country to another. The shortest time limits areset in Denmark (as soon as possible within ten days), Portugal (ten days)and in the Netherlands (as soon as possible within two weeks). The longesttime limit is applied in Germany, Spain (two months) and the UnitedKingdom (as soon as possible and at the latest two months). In someWestern European countries, a special time limit is set for refusing access

to information, for example, in Denmark where this is set at ten days. Insome countries (e.g in Germany and Spain), access to environmental infor-mation is refused by not replying. In many Central European and EECCAcountries, the same time limit applies both to responding to a request andproviding the information requested. The time limit for the provision ofinformation varies from 15 days in Hungary, Latvia, Lithuania and FYRMacedonia, to one month in several other countries. In a number of coun-tries, the time limit may be reduced to 15 days if no additional investiga-tion is required to respond to an information request (Armenia, Belarus,Moldova and Ukraine) or, if special inquiries are needed, extended by 15days (Ukraine) or one month (Albania, Armenia, Belarus, Latvia, Lithuania,Poland, Moldova and FYR Macedonia). In Estonia, if the authorities areoverloaded, the time limit may even be extended to three months. In somecountries, shorter time limits are applied for refusing access to information(eight days in Hungary and Lithuania, ten days in Ukraine). For more detail,see Background paper ECE/CEP/46, Committee on Environmental Policy,fourth ministerial conference on the Environment for Europe, Aarhus,Denmark, June 23-25, 1998.

11 See European Commission, IP/99/489, Brussels, July 12, 1999.

12 See Doors to democracy: A pan-European Assessment, op. cit., table 2,pp. 24-25.

13 The Aarhus Convention deals with exemptions in article 4(3) and 4(4).

14 For more on the institution of ombudsman, see Part I, chapter 5 andappendix B.

15 See Doors to democracy: A pan-European Assessment, op. cit., p. 23.

16 Felix Frankfurter, a US supreme court justice, once wrote: “The historyof liberty has largely been the history of the observance of procedural safe-guards.” McNabb v. United States, 318 US 332, 1943.

17 Strickland v. Morton, 519 F.2d 467, 469, (9th Cir.) 1975.

18 However, they will in cases where legislation allows for the possibilityto challenge the decision on procedural illegality. A few cases, like UkraineCase 2 (the Right to Know Case), have been decided in the region and arestarting to change the tradition.

19 For an overview of EIA and ecological expertise, see Stec, Stephen, EIAand EE in CEE and CIS: Convergence or evolution?, in Nespor, S. (ed), Aworld survey of environmental law (special issue of Rivista Giuridicadell’Ambiente), Milan, 1996 (reprinted in ELNI 2/96).

20 REC, Doors to democracy: Current trends in public participation in envi-ronmental decision-making in the Newly Independent States. Szentendre:Regional Environmental Center for Central and Eastern Europe, June 1998,pp. 163-165.


Preface, Explanatory note, Introduction and Part I: Endnotes

21 Bruch, Carl E. & Czebiniak, Roman, Globalizing environmental gover-nance, 32 Envtl. L. Rep. 10428, April 2002.

22 See Implementation guide, op. cit., at 131.

23 See CEP/WG.5/2001/5.

24 Article 9(3) differs from articles 9(1) and 9(2) in this regard. See Part I,chapters 4 and 5.

25 Article 3(1) of the Convention commits each party to take “necessary ...other measures” and not merely legislative and regulatory measures, aswell as “proper enforcement measures.” The purpose of these measures,including the “other” and “enforcement” measures, is to “establish ... aclear ... and consistent framework” to implement the provisions of theConvention. Furthermore, article 3(4) requires each party to ensure that itsnational legal system is consistent with the obligation to provide “appro-priate” support to groups promoting environmental protection. Takentogether, these provisions could be applied by a court to allow directenforcement, where constitutions allow the direct application of interna-tional law.

26 The liberal criteria are in part a result of judicial interpretations, butsince the courts claim to be interpreting the legislation itself, theNetherlands may be listed in this section as having legislatively broadenedstanding.

27 See General Administrative Law Act of 1994, title 3.5, Extended PublicPreparation Procedures. See also Betlem, Gerrit, Environmental locus stan-di in the Netherlands, 3 Rev. of Eur. Comm. & Int’l Envir. L. 238, 1994.

28 Klik, P. Group actions in civil lawsuits: The new law in the Netherlands,4 Eur. Envtl. L. Rev. 14, 1995, for analyses of articles 3:305a, 305b of theDutch Civil Code.

29 Betlem, Gerrit, The state of Dutch environmental law anno 1995, inNespor, Stefano (ed). A world survey of environmental law. Milan:Rapporto Mondiale sul Diritto dell’Ambiente, 1996, pp. 259 & 263.

30 De Nieuwe Meer case, HR 27 June 1986, Nederlandse Jurisprudentie,743, note by Heemskerk, cited in ibid.

31 Fuhr, Gebers, Ormond & Roller, Access to justice: Legal standing forenvironmental associations in the European Union, in Robinson & Dunkley(eds). Public interest perspectives in environmental law. London: WileyChancery, 1995, p. 89.

32 Ibid., pp. 79-80.

33 Ibid.

34 Ibid.

35 In the opinion of this author, a requirement for an NGO to have a “per-sonal direct interest” might be found to conflict with the requirement inarticle 3(4) of the Aarhus Convention that each party shall “ensure that itsnational legal system is consistent with [the] obligation” to provide “appro-priate recognition of and support to associations, organizations or groupspromoting environmental protection.”

36 The Council of State did suggest that if the threatened frog were an“endangered” species, an NGO might be able to sue for its protection.

37 La Loi du 12 janvier 1993 concernant un droit d’action en matiere deprotection de l’environnement. Ercmann, Sevine, Enforcement of environ-mental law in United States and European law: Realities and expectations,26 Envtl. L. 1213, 1225 nn. 47-48, 1996. The information was taken fromBetlem, Gerrit, Standing for ecosystems: Going Dutch, 54 Cambridge L.J.153, 1995, pp. 160-70.

38 Case C-321/95, [1998] ECR I-1651.

39 See <europa.eu.int/eur-lex/en/treaties/dat/ec_cons_treaty_en.pdf>.

40 Case C-321/95, [1998] ECR I-1651.

41 A brief, clear elaboration of this case can be found in Report: Complaintprocedures and access to justice for citizens and NGOs in the field of theenvironment within the European Union, op. cit., pp. 37-40.

42 Sioutis, Glykeria, Greece environmental law and judicial review, in Aworld survey of environmental law, op. cit., p. 195.

43 Ibid.

44 Ibid., p. 197.

45 In a similar vein, four judges of the Council of State reported at a collo-quium in 1982 that a “legal interest” can be an “intangible” one. Jensen,Torben, General report, in The concept of interest in administrative litiga-tion (personal interest, collective interest, actio popularis), especially inenvironmental matters, Eighth Colloquium of the Councils of State andSupreme Courts of Justice of Member States of the European Community,Copenhagen, 1982, p. 141 (referred to below as The concept of interest).

46 Afilalo, Ari, How far Francovich? Effective judicial protection and asso-ciational standing to litigate diffuse interests in the European Union, 1998Jean Monnet Papers, Harvard Law School, <www.jeanmonnetprogram.org/papers/98/98-1-.html>. Other citations on German standing doctrineinclude Ormond, Environmental group actions in West Germany, in Fuhr& Roller (eds), Participation and litigation rights of environmental associa-tions in Europe: Current legal situation and practical experience, 1991;Greve, The non-reformation of administrative law: Standing to sue and pub-lic interest litigation in West German environmental law, 22 Cornell Int’l L.J. 197, 1989; Koch, Class and public interest action in German law, CivilJustice Quarterly; Rose-Ackerman, Susan, American administrative lawunder siege: Is Germany a model? 107 Harvard Law Review 1279, 1994.

47 Greve, ibid., p. 216.

48 Section 28 of the Administration Act (Forvaltningsloven) and section 54of the (Civil) Procedure Act (Tvistemalsloven) require that a party has a“legal interest.” See also Bugge, Hans Christian, The new article on envi-ronmental protection in Norway’s Constitution, in World Survey, op. cit., p.321, (“There are no special rules for environmental rights and interest.”).

49 Case report at NRt 1980, pp. 569 & 575, quoted in Basse, EllenMargrethe, Report from Denmark, in The concept of interest, op. cit., p. 41.

50 Ibid., pp. 575-76.

51 R. v. Inspectorate of Pollution, ex parte Greenpeace, Ltd. (No. 2) (1994)4 All E R 329 (High Court, by Justice Otton).

52 Quoted in Darroch, Fiona, Recent developments in UK environmentallaw, in A world survey of environmental law, op. cit., pp. 293 & 300. JudgeOtton said, however, that standing would be granted on a case-by-casebasis, not that all interest groups would automatically be granted standing.This comes under the rubric of “leave to appeal,” something provided inthe Supreme Court Act 1981 sec. 31(3); see ibid.

53 CO/3410/96 (High Court of Justice, QB Div., Crown Office) (April 20 ,1997).

54 Ibid.

55 Article 162 of the 1991 Constitution of the Republic of Slovenia.

56 Party of Democratic Renewal of Domzale, and Kristina Brodnik fromDomzale, No: U-I-34/92, 8.3.1993. On file with author.

57 This case study is presented in shortened form in the handbook. Theauthor did additional research, in cooperation with Mirkovic, on this caseand others.

58 Drustvo ekologov Slovenije (Association of Ecologists of Slovenia), CaseNo. U-I-30/95, 15.1.1996, as described by Milada Mirkovic in a memo-randum on file with author.

59 Environmental Protection Act, article 4(3), Official Gazette of theRepublic of Slovenia no. 32/93.



60 Gyula Bandi has stated: “The Constitution was amended in 1989 withthe assumption that constitutional rights in the future would serve as thebasis of legal action.” His view is that an explicit expectation existed thatcitizens would be able to bring cases to the courts on the basis ofConstitutional environmental rights. The Constitution regulated the right toenvironment in two relatively different ways. Article 18 grants a specificright: “The Hungarian Republic recognizes and enforces the right to ahealthy environment for everyone.” Article 70/D treats this right as a toolfor ensuring the highest possible level of physical and mental health. Inaddition to protecting the man-made and natural environment, this right isensured by the organisation of labour safety, public health and medicalcare systems. See Bandi, Gyula, The right to environment in theory andpractice: The Hungarian experience , 8 Connecticut Journal of InternationalLaw 439, 1994. Actually, interpretation of the right to a safe environmentmay be unnecessary in Hungary. Unlike restrictions on access to constitu-tional courts in some other countries in the Central Europe and EECCAregion, Hungary’s Constitution imposes no such limitations. Any citizencan bring a case to this court. See Constitution of the Republic of Hungary,article 32/A; see also Act XXXII of 1989. Poland now has a similar provi-sion. See Constitution of Poland of 1997.

61 Ibid.

62 Howard, A.E. Dick, Symposium: Constitutional “refolution” in the ex-communist world: The rule of law, September 26, 1996, 12 AmericanUniversity Journal of International Law & Policy 45, 1997. Bandi has alsowritten that Chapter VII on citizen participation of the 1995 law gives theserights to NGOs.

63 The court did not base its decision on the specific words of article 70/Dalone. “Rather, it drew parallels between the unity of Articles 18 and 70/Dand the right to life on the basis that a healthy environment is an objectivecondition for the right to life.” See Stec, Stephen, Environment, democracyand wealth, work in progress, on file with the author. If article 70/D mere-ly clarifies and aids in the interpretation of article 18, as Stec argues, andarticle 18 alone can carry the weight of providing an enforceable, substan-tive right, this could be of great significance in other CEE countries whoseconstitutions also contain a broad environmental right comparable to thatin article 18. Ibid.

64 <www.curia.eu.int/en/pres/jeu.htm>.

65 Ibid.

66 See Implementation Guide, op. cit., pp. 127-128.

67 See Background paper ECE/CEP/46, Committee on EnvironmentalPolicy, fourth ministerial conference on Environment for Europe, Aarhus,Denmark, June 23-25, 1998.

68 The Aarhus Convention is neutral in this respect. In its own terms, anyright to judicial review accorded by article 9(2) “shall not affect the require-ment of exhaustion of administrative review procedures prior to recourse tojudicial review procedures, where such a requirement exists under nation-al law.”

69 In Spain Case 1 (the Nuclear Files Case), the Audiencia Nacional — aspecial division of the Supreme Court of Justice set up to relieve the pres-sure of business on the High Court and the High Court of MadridAutonomous Region — acted as an administrative appeal body, and itsdecisions could be appealed to the Supreme Court of Justice.

70 For more examples, see Complaint procedures and access to justice forcitizens and NGOs in the field of the environment within the EuropeanUnion, op. cit.

71 Ibid.

72 The word ombudsman is Swedish and means “representative.” For anhistorical overview of the institution of the ombudsman, see theInternational Ombudsman Institute’s website at <www.law.ualberta.ca/centres/ioi/eng.htm>.

73 For detailed information on the institution of the Ombudsman inDenmark see appendix B.

74 By 2001, the ombudsman office at the national level of government isfound in approximately 110 countries around the world. In several countries,ombudsman offices exist at regional, provincial, national and municipal lev-els of government. Some countries have ombudsman offices at the national,regional and subnational levels, such as Australia, Argentina, Mexico andSpain, while other countries have ombudsman offices only at the subnation-al government level, such as Canada, India and Italy. In Austria, the institu-tion of an ombudsman exists on federal and state level, and there are alsospecial Umweltanwaltschaften (attorneys for the environment) at state level.

75 For more detail on the ombudsman in Western European countries, seeComplaint procedures and access to justice for citizens and NGOs in thefield of the environment within the European Union, op. cit.

76 For a general overview of the institution of the ombudsman in CentralEuropean and EECCA countries, see REC, Status of Public ParticipationPractices in Environmental Decisionmaking in Central and Eastern Europe;and REC, Doors to democracy: Current trends in public participation inenvironmental decision-making in Western Europe, Szentendre: TheRegional Environmental Center for Central and Eastern Europe, June 1998,pp. 49-50, 107, 184, 387-388.

77 See, Where does the ombudsman fit under the Convention?,Implementation guide, op. cit., p. 127.

78 The European ombudsman is appointed by the European Parliament andis an independent body, as explicitly stated in article 195 of the Treaty. Forfurther information see <www.euro-ombudsman.eu.int>.

79 See also COM (2001) 161 Final communication from the Commissionon widening consumer access to alternative dispute resolution, andCommission working document on the creation of a European extrajudicialnetwork (EEJ-NET).

80 See <www.pca-cpa.org/edr>.

81 Implementation guide, op. cit.

82 Ibid.

83 See <www.ajs.org/cji/>.

84 Lambroschini, Sofie, Russia: Judges, plaintiffs, defendants face arbitra-tion court problems — Part 2, <www.rferl.org/nca/features/2001/04/25042001114033.asp>.

85 Ibid.

86 See <conventions.coe.int/treaty/EN/WhatYouWant.asp?NT=174&CM=8&DF=>.

87 Baker, G. & Stigler, G., Law enforcement, malfeasance and compensa-tion of employees, Journal of Legal Studies 3, 1974, pp. 1-18.

88 Buscaglia E., Judicial corruption in developing countries: Its causes andeconomic consequences, <www.hoover.standford.edu>.

89 See <www.greco.coe.int>.

90 De Castro, R. Adolfo, The ombudsman and the myth of judicial inde-pendence, <www.ombuds.uci.edu/journals/1994/ombudsman_myth.html>.

91 De Castro cites the Finnish ombudsman Soderman (currently theEuropean ombudsman): “it is not a wise thing to allow the judicial systemto be without any kind of control or supervision given the fact that the his-tory of humanity ... evidences many examples of the unsatisfactory resultsproduced by the exercise of unlimited power.” Ibid.

92 To ensure effectiveness of such mechanisms, certain protection guar-antees should be put into place where absent (so-called “whistle blowerprotection”).


PA R T I : E N D N OT E S

93 See Vari, Anna, Civil society and public participation: Recent trends inCentral and Eastern Europe, <www.sfu.ca/cedc/research/civilsoc/vari.htm>: “Due to the economic recession in the CEE region, the vast majori-ty of communities have become interested in hosting operational facilities,despite the risk to the environment. Local governments are struggling withfinancial problems, so they are eager to have as much development ontheir territory as possible and the local public is more interested in keepingor creating jobs than in protecting the environment.”

94 See <conventions.coe.int/treaty/en/Treaties/Html/005.htm>.

95 This section on advisory opinions was written by Brian Rohan, LudmillaUngureanu and Olena Dmytrenko.

96 Law on the Supreme Court of Justice of Moldova, article 2.

97 Law on the Judicial System of Ukraine, article 40, 1981.

98 Interview with Justice Vasyl Humenyuk of the Supreme Court ofUkraine, by Olena Dmytrenko.

99 For example, in Moldova, there is no deadline for forwarding the casebetween the instances of the court (P. Zamfir, presentation at the Sub-regional Case Study Development Meeting, Lviv, Ukraine, June 2001).

100 Sub-regional Case Study Meeting, Lviv, Ukraine, June 2001.

101 See, for instance, Moldova Case 1 (the Sarmi Park Case).

102 This section focuses on injunctions issued by courts. However, in somecountries, injunctions may also be issued by other authorities. For example,in Denmark, an agency conducting an administrative review may grant atype of “administrative injunction.” Administrative measures to halt anaction are an important access to justice tool, since administrative reviewtypically occurs earlier in the development of a project than a court action.

103 Doors to democracy: Current trends in public participation in envi-ronmental decisionmaking in Western Europe, op. cit., pp. 49-50, 107,184, 387-388. Note also that terms differ from country to country.

104 Correspondence from Joost Rutterman to Brian Rohan, August 10,2001.

105 In effect, the bond is a guarantee, secured by actual funds, and sur-rendered to the court’s authority. These losses may include lost profits foran enterprise of which operations are suspended or delayed, as well as anyfines or penalties the enterprise may incur from government, its suppliersor others.

106 Correspondence from Ludmilla Ungureanu to David Jacobstein,August 7, 2001.

107 Correspondence from Merab Barbakadze to Brian Rohan, August 9,2001.

108 Oral communication by Sandor Fulop in Lviv, Ukraine, June 5, 2001.

109 Doors to democracy: Current trends in public participation in envi-ronmental decisionmaking in Western Europe, op. cit., p. 228.

110 McLaughlin & Dhillon, Preliminary injunctive relief in the federalcourts, Practicing Law Institute, 1996.

111 Conversation between Rutterman, Rohan and Jacobstein, August 13,2001.

112 Code of Administrative Procedure of the Republic of Georgia, January2000.

113 Kramer, Ludwig, The citizen in the environment: Access to justice, 8Environmental Liability 127, 140, 2000.

114 Ukraine Case 4 (the Troublesome Cafeteria Case).

115 Ukraine Case 3 (the Pyrogovo Villagers Case).

116 Doors to democracy: Current trends in public participation in envi-ronmental decisionmaking in Central and Eastern Europe, op. cit., pp. 320-321.

117 Ibid., pp. 195 & 229.

118 Ibid., p. 370. Act on Court Fees, article 4(71), 1992.

119 Ibid., p. 147.

120 Ibid., pp. 119 & 229.

121 Ibid., p. 388.

122 The Sosnivka Case. See Kravchenko, S., Victories and failures of pub-lic interest environmental law organizations in Eastern Europe, inEnvironmental citizen suits at thirtysomething: A celebration and summit,Widener Symposium, Autumn 2003 (forthcoming). The case was describedat an earlier stage in Doors to democracy: Current trends in public partici-pation in environmental decision-making in the Newly Independent States,op. cit., pp. 35-36.

123 See CEP/WG.5/2001/5, paragraph 45.

124 Section 166 of the Code of Administrative Procedure (VwGO), § 166,sentence 1, no. 2 of the Code of Civil Procedure (ZPO).

125 Section166 of the Code of Administrative Procedure (VwGO), § 114 ofthe Code of Civil Procedure (ZPO).

126 Ukraine Code of Civil Procedure, article 76.

127 Buckhannon Board and Care Home v. West Virginia Dept. of Healthand Human Resources (no. 991848, May 29, 2001).

128 Department of statistics, tax police, state tax administration, a bankwhere an NGO wants to open an account (by law a juridical person musthandle most financial transactions through the bank), the Ministry ofInternal Affairs permit system (for obtaining a seal), social security fund,pension fund and unemployment fund.

129 See Tollefson, Strategic lawsuits against public participation:Developing a Canadian response, 73 Canadian Bar Review 200-233, June1994 (discussing SLAPPs in Canada); Donson, F., Legal intimidation, FreeAssociation Books, September 2000, (SLAPPs in Canada, the US and UK);Wells, Exporting SLAPPs: International use of the US ‘SLAPP’ to suppressdissent and critical speech, 12.2 Temple Int’l & Comp. L.J. 457, 1998(SLAPPs in the UK, Canada and the US); and Pring, George & Canan,Penelope, The world is getting SLAPP-happy, Nat’l. L J., May 20, 1996, p.A19 (SLAPPs in the UK and US).

130 The term “SLAPP” was coined by University of Denver professors Pringand Canan. See, Pring, G. & Canan, P., SLAPPs: Getting sued for speakingout, 1996 (referred to below as Pring & Canan).

131 For examples of SLAPPs in UNECE countries, see the Friends of theLubicon website <www.tao.ca/~fol> (Daishowa Paper Manufacturing Co.Ltd., a Japanese multinational, sued Friends of the Lubicon when it led aboycott against Daishowa for planned logging activities in areas claimed bythe Lubicon) (Canada); Protect Our Mountain Environment v. DistrictCourt, 677 P. 2d 1361 (Colo. 1984) (US); see the McSpotlight website<www.mcspotlight.org> for information about a libel case filed byMcDonalds against citizens for distributing pamphlets criticisingMcDonalds (this has become known as the McLibel case) (UK); theMcSpotlight website also reports that McDonalds has charged citizens inother UNECE countries with defamation, see <www.mcspotlight.org/com-pany/other_mclibels/index.html> (Scotland, Poland, UK, US).

132 US Constitution, 1st Amendment. In McDonald v. Smith, 472 U.S. 479(1985), the US Supreme Court traces the English roots of the petition clause.

133 Pring & Canan, op. cit., p. 168.

134 Ibid., p. 20.




135 Ibid., p. 170.

136 The Canadian province of British Columbia passed an anti-SLAPP law,

the Protection of Public Participation Act (Bill 10) in early 2001.

Unfortunately, a new government repealed the law in August 2001.

Although there is currently no federal anti-SLAPP law in the US, approxi-

mately 16 states have anti-SLAPP laws. See the California Anti-SLAPP proj-

ect at <www.casp.net> for links to these state laws.

137 This model bill (it is not law), the Citizen Participation in Government

Act of 1995, can be found on the California Anti-SLAPP project’s website

at <www. casp.net/halt.html>.

138 Ibid., section 4.

139 Ibid., sections 6(a) & (b).

140 Ibid., sections 6(c) & (e).

141 Ibid., section 6(g).

142 Ibid., section 6(h).

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Part IIRelated Access to Justice Issues


PA R T I I : R E L AT E D AC C E S S TO J U S T I C E I S S U E S



The right to a healthy environment in Europe

In the 1998 publication, Doors to Democracy1 — a sur-vey of trends and practices in public participation in envi-ronmental decision-making in most of the UNECE region —a large number of countries were found to have a constitu-tional right to a healthy environment. Within Europe, theregional differences were remarkable. Four out of five juris-dictions surveyed in Eastern Europe, Caucasus and CentralAsia, 12 out of 17 jurisdictions in Central and EasternEurope, and a substantially lower proportion of countries inWestern Europe had such a right (Western European con-stitutions tend to be significantly older).2 Historical factorsplayed a role. In countries directly affected by Chernobyl,for example, the formulations include specific rights ofaccess to environmental information and to compensationfor harm (e.g., Belarus, Ukraine, the Russian Federation andMoldova, mainly dating from 1991-92).

The content of such a right is by no means settled. Anumber of courts in many parts of the world have giveninterpretations of the meaning of a right to a healthy envi-ronment. Courts have affirmed the right to a healthy envi-ronment in the Philippines, Costa Rica, Argentina, Chile,Ecuador, Peru, India and Pakistan.3 Fitzmaurice, for exam-ple, sketches three main schools of thought relating to theright to a healthy environment. These three main schoolsmay roughly be characterised as follows:

• The right to a healthy environment is a fundamentalhuman right upon which all other rights depend.

• The right to a healthy environment is not a funda-mental right, but rather a right deriving from otherhuman rights.

• No right to a healthy environment exists.

Moreover, proponents of a right to a healthy environ-ment disagree on whether such a right is an individualright, a group right or a “third generation” right.4

There is a movement in Europe towards the recogni-tion of the right to a healthy environment in one form oranother. Jurisprudence in Belgium,5 Slovenia, Hungaryand Georgia and on the pan-European level through theEuropean Court of Human Rights has begun to defineenvironmental rights. Thus, the right to a healthy envi-ronment or the right to “home” in Europe begins toapproach the various definitions of the right to a healthyenvironment as it is being shaped by jurisprudence inother parts of the world.

In at least one of the cases reported in this handbook,the connection was made between basic rights and envi-ronmental rights. In Georgia Case 2 (the Vake Park Case),the court appeared to be disposed towards accepting thearguments of the plaintiff that illegal activities affecting thenatural heritage of the people were human rights viola-tions under the Georgian Constitution. Unfortunately, thecase was withdrawn due to threats to the plaintiff and hisfamily before a final decision upholding the argumentscould be made.

Another case from Georgia has raised an interestingaspect of rights and duties with respect to nature. Somelegal systems treated nature as consisting of specific natu-ral resources to be exploited. Nature protection often tookthe form of a kind of “sustainable use” of such resources inprinciple, whereas the reality was often of unrestrictedexploitation. In Georgia Case 1 (the Defence of NationalPark Case) interpreting the Georgian Constitution, citizensresisted the dedication of certain territories as nationalparkland, claiming that the nature protection regime wouldprevent them from using the land, invoking the basichuman right to use the natural environment, as well as theright to live in a healthy environment. While such a casecould arise from a conflict between traditional practicesand the value of undisturbed nature, in the Georgian caseit appears to be based on a desire to preserve opportuni-ties for illegal exploitation. This in turn raises the questionof the difficulty to protect the environment when peoplehave trouble meeting basic economic needs.

Chapter 1Rights and duties towards

a healthy environmentStephen Stec

The decision of the Constitutional Court of Slovenia inthe case of the National Association of Ecologists (seeappendix B) may be based on a social or collective right toa healthy environment. Constructions of social or collectiverights often emphasise the duties that correspond to therights. In this case, the Constitutional Court of Sloveniainterpreted the constitutional right for a healthy environ-ment found in article 72 of the Constitution in order todetermine whether the plaintiffs (NGOs and individuals)had a right to challenge the legality of a development planfor a small enterprise zone near an environmentally sensi-tive area. The standing of the NGO was recognised on thebasis of the Environmental Protection Act, which imposeda duty to protect the environment upon professional andother NGOs established for the purpose of environmentalprotection. While this is in itself significant to the questionof open standing for NGOs (see Part I, chapter 3), the moreinteresting question related to the individuals. In interpret-ing article 72, the court held that all persons have an inter-est in preventing damage to the environment, and that thisinterest is not limited to the area where they reside, butencompasses a broader area. The “interest” to preventdamage to the environment resembles a duty to protect theenvironment, and the court provided the necessary legalgrounds for the discharge of the duty.

Jurisprudence pointing towards a so-called “third gen-eration” right can be found in the Protected Forests Case(see appendix B) before the Constitutional Court ofHungary. This case, dealing with the constitutionality of anamendment of a 1992 law on the privatisation of agricul-tural land that had the effect of “reprivatising” land that hadpreviously been declared protected, involved two consti-tutional provisions. The first of these constitutional provi-sions, article 18, was a rather conventional declaration ofthe right to a healthy environment. The second, article70/D, provided for a human right to the highest possiblelevel of physical and spiritual health. In a well-reasoneddecision, the Hungarian Constitutional Court declared thatthese two constitutional rights, taken together, were “thirdgeneration” constitutional rights, that is, neither collectivenor individual rights, but rights that nevertheless could beenforced. In drawing an analogy to the right to life on thebasis that environmental resources are limited, most envi-ronmental damages are irreversible, and the environmentis the basis for all life, the court interpreted articles 18 and70/D to place an obligation on the state to provide legaland institutional guarantees for an objectively high level ofenvironmental protection.6 Thus, if at any time the stateguaranteed a certain level of environmental protection, itcould not be withdrawn arbitrarily. Such protections couldonly be diminished in proportion to upholding other con-stitutional rights or values. This furthermore implied, in thecourt’s view, that the rights found in the Constitution, in anappropriate case, could be the basis of a cause of action torequire the state to maintain high objective standards of

environmental protection.7

An understanding of the right to a healthy environ-ment — somewhere between a general collective orsocial right — and a duty to ensure an objectively highlevel of environmental protection, arises out of jurispru-dence in Belgium. There, the tribunal of first instance ofAntwerp considered a case where citizens brought anaction to prevent the operation of a waste incinerator.8

The judge sustained the action. In dismissing a third-partyclaim in the same case, the judge later drew out the rela-tionship between his decision and the right to a healthyenvironment, stating:

“[I]f the government, in the implementation of its policy,comes into conflict, or threatens to come into conflict,with the fundamental rights of the citizens to a dignifiedexistence in a healthy and safe environment, it mustreview this policy because the government should notseek legitimacy in itself, but in the promotion, safe-guarding and protection of the interests of its citizens,whose health and safety it should give priority.”9

The judge was considering a decision that flew in theface of various expert reports and the findings of a com-mittee led by a respected professor. Under such circum-stances, the decision to permit the operation of the incin-erator was held to be a violation of the right to a healthyand safe environment. Furthermore, the standing of citi-zens to bring the action in the place of the authorities whofailed to act was discussed in terms of the right to a healthyenvironment. According to the judge, statutory develop-ments in Belgium that granted standing to NGOs in envi-ronmental matters (see Part I, chapter 3) helped to shapethe meaning of the right to a healthy environment by defin-ing the terms of “action” by members of the public indefence of environmental issues. The New Municipal Act(article 271) gave a right to citizens to take up municipalmatters where the authorities failed to act. These provi-sions together were held to grant standing to ordinary citi-zens to bring forward matters related to the environmentwhere municipal authorities do not act.

In the Lopez Ostra case,10 Guerra v. Italy (see appendixB) and Hatton v. UK, the European Court of Human Rightsin Strasbourg began to define the “right to respect for pri-vate and family life, and for home” found in article 811 ofthe European Declaration on Human Rights12 in a way thatclosely resembles a right to a healthy environment as it isbeing shaped elsewhere (see next chapter).

It can thus be seen that jurisprudence is a major factor inthe shaping of the right to a healthy environment in theUNECE region, even though there is not yet a commonunderstanding of this right. A “middle ground” is developingwhere, under certain circumstances, an individual may havea legally recognisable interest in a healthy environment.



Aarhus rights and procedurescontributing to the right to a healthyenvironment

The Aarhus Convention represents a “giant step for-ward”13 in the quest to strengthen citizens’ environmentalrights. The objective of the Aarhus Convention is found inits first article. Article 1 states:

“In order to contribute to the protection of the right ofevery person of present and future generations to livein an environment adequate to his or her health andwell-being, each Party shall guarantee the rights ofaccess to information, public participation in decision-making, and access to justice in environmental mattersin accordance with the provisions of this Convention.”

While referring to the right to a healthy environment,the Aarhus Convention deals primarily with the mostly pro-cedural rights of access to information, access to decision-making and access to justice. Article 1 instructs parties inhow to take steps to guarantee the basic right of presentand future generations to live in an environment adequateto health and well-being. In so doing, it establishes thelinkage between practical, easily understandable rights,such as those relating to information and decision-making,and the more complex collection of rights included in theright to a healthy environment.14

Article 1 also concretises the role of the state in helpingto reach this goal. Under the framework of the AarhusConvention, it is up to the party to provide the necessaryadministrative, legal and practical structures to guaranteethe rights of access to information, public participation indecision-making and access to justice in environmentalmatters. This represents a new approach to the role of thestate. Instead of solving all of society’s problems itself, thestate acts as a sort of referee in a process involving largersocial forces, leading to a more organic and completeresult. According to this view, once transparent and fairprocesses have been worked out, the main role of the stateis to provide the necessary guarantees to maintain theframework. The Aarhus Convention provides a set of min-imum standards to parties to guide them in how to protectthe right to a healthy environment.

The main mechanism for guaranteeing the rights con-tained in the Convention is the access to justice pillar. Bybacking up the procedural and substantive rights concern-ing access to environmental information and public partic-ipation in environmental decision-making with legal, insti-tutional and other guarantees, parties will provide thestructure for discharging their responsibility to help people

to overcome the significant current challenges to achievesustainable development.

Both the right to a healthy environment and the proce-dural rights in the Aarhus Convention are constantly evolv-ing. It is important, therefore, to place the Convention inthe context of the changing shape of the right to a healthyenvironment, as well as the developing international lawon sustainable development.

Several reference points are found in the Convention’spreamble, including the Stockholm Declaration, the RioDeclaration, the World Charter for Nature, and others.15

While the right to a healthy environment was recognisedearlier in other regions of the globe, the AarhusConvention appears to be the first hard-law text to recog-nise the rights of future generations. The InternationalCourt of Justice has used similar language in recognisingthat the very health of generations yet unborn is represent-ed by the environment.16 The Aarhus Convention takes thisjurisprudential recognition a step further and moulds it intoan international legal instrument. The three pillars thatmake up the fundamental structure of the Convention areessential to the achievement both of the right to a healthyenvironment, and also, no less important, of the possibilityfor individuals to fulfil their responsibilities towards others,including future generations.

Nowhere are these connections made more apparentthan in actual cases. Perhaps the most well-known of suchcases is the case of Nikitin (Russia Case 2), the Russiannavy reservist acquitted of espionage charges after almostfive years of proceedings. His alleged crime was providinginformation to the public about potential dangers to pres-ent and future generations resulting from activities of andaccidents by the Russian nuclear submarine fleet. Hisacquittal was a vindication of civil and environmentalrights, as well as the proper functioning of the Russiancourts according to the rule of law. The case of Guerra v.Italy is an example where the lack of environmental infor-mation alone was connected to the very right of a family tochoose how to live.

Basic human rights related to the environment andbasic civic responsibilities are interwoven, but both therights and the responsibilities may remain unfulfilled aslong as persons lack the capacity to act in civil society. Therole of the access to justice pillar is a critical one. It involvesthe establishment of proper institutions, the guarantee bythe state of clear and transparent frameworks for action,and the judicious exercise of state power to ensure theproper functioning of the well-established mechanisms forempowerment towards sustainable development that arethe subject of the Convention.

C H A P T E R 1 : R I G H T S A N D D U T I E S TO WA R D S A H E A LT H Y E N V I R O N M E N T



The European Court of Human Rights serves as asupranational judicial body for the protection of humanrights provided by the Convention for the Protection ofHuman Rights and Fundamental Freedoms of 1950. TheConvention empowers the court to receive applicationsfrom any person, NGO or group of individuals claimingto be the victim of a violation by a state-party of the rightsset forth in the Convention.

Although this represents a unique opportunity forindividuals to seek protection of their rights, the jurisdic-tion of the court extends only to matters concerning theinterpretation and application of the Convention and itsprotocols. Thus, access to the court is quite limited, espe-cially with regard to environmental matters, as the text ofthe Convention does not contain an explicit reference tothe environment.

Nevertheless, the case law of the European Court ofHuman Rights shows that it can grant standing and recog-nise a breach of human rights resulting from severeenvironmental pollution. The court has clearly admittedthe existence of a link between the environment andhuman rights, although this was not proclaimed by theConvention itself.

Thus, while the access to justice provisions of theAarhus Convention directly govern environmentalmatters, they are not covered by the EuropeanConvention on Human Rights. Either “procedural” rightsprovisions (such as article 6 of the European Conventionon Human Rights — right to a fair trial) must be used,which give access to the court regardless of the substan-tial matter of the suit, or specific rights must beinterpreted so that environmental concerns are taken intoaccount (such as article 8 — right to respect for privateand family life, article 10 — freedom of expression, andarticle 2 — right to life).

The European Court of Human Rights has developedthe position that “severe environmental pollution mayaffect individuals’ well-being and prevent them fromenjoying their homes in such a way as to affect their

private and family life adversely without, however, seri-ously endangering their health”.17

The first environmental case resolved in favour of peti-tioners was Zander v. Sweden (1993). The applicants’ landwas adjacent to a waste-tip. Analyses made in 1979revealed that the waste had polluted the applicants’drinking water as a result of which a ban was placed on theuse of the water, and municipal drinking water wastemporarily supplied instead. Subsequently, the permis-sible concentration of the relevant pollutant in the drinkingwater was raised and the applicants’ supply of municipaldrinking water was stopped. A company’s application tothe licensing authority for a permit to dump waste on thetip was granted and requests by the applicants that such apermit must be conditional upon the company takingprecautionary measures to avoid further pollution wererejected, apart from an obligation to provide the applicantswith safe drinking water should the concentration levels ofpollutants in their own water exceed permitted limits. Theapplicants’ only right of appeal against the licensingauthority’s decision was the government, which dismissedthe appeal. The applicants complained that they had beendenied a hearing before a tribunal in the determination oftheir civil rights, in violation of article 6(1) of theConvention. The Court held unanimously that there was abreach of article 6(1)18 and awarded non-pecuniarydamages of SKR 30,000 to each applicant, as well as SKR145,860 toward their court expenses.

Article 6(1) is an important remedy that may be used ifthe access to justice provisions of the Aarhus Conventionare not guaranteed by national law. However, a few issuesmust be highlighted with regard to such claims. In consid-ering complaints based on the violation of article 6(1), theCourt must ascertain whether there was a dispute over aright recognized under domestic law. The dispute can alsobe genuine and serious: it must relate not only to the actualexistence of a right but also to its scope and the manner ofits exercise. Finally, the result of the proceedings must bedirectly decisive for the right in question.19


Chapter 2Environmental human rights protection in

the European Court of Human RightsAndriy Andrusevych

Lopez Ostra v. Spain (1994) is probably the most well-known and cited case of the European Court of HumanRights where environmental pollution was recognised toresult in the violation of a human right. A waste treatmentplant was built close to the applicant’s home in a town witha heavy concentration of leather industries. The plantbegan to operate without a license, releasing fumes andodours that caused health problems among local residents.The applicant alleged breaches of articles 8 and 3 of theConvention, and claimed compensation for damage andreimbursement of costs and expenses under article 50. Thecourt held that there was a breach of article 8 (right torespect for private and family life) and awarded damages,as well as expenses and costs.

Two aspects of this case are relevant from the access tojustice point of view:

• the exhaustion of national remedies (which is therequirement to file a complaint with the EuropeanCourt of Human Rights under article 35(1) of theConvention); and

• the submission of statements and medical reports(forming grounds for the complaint) not to the nation-al Spanish courts, but instead directly to the EuropeanCourt of Human Rights.

The first aspect concerns one of the most commonobstacles to access to justice: duration of the administrativeand judicial proceedings. The court held that “it was notnecessary for the applicant to institute ordinary criminaland administrative proceedings since the special applica-tion for protection of fundamental rights lodged with theAudiencia Territorial was an effective, rapid means ofobtaining redress in the case of her complaints relating toher right to respect for her home and for her physicalintegrity, especially since that application could have hadthe outcome she desired, namely closure of the wastetreatment plant.”

The second important aspect is that, if the administra-tive or judicial review process lasts long, new facts andevidence can appear while the complaint is being consid-ered by national courts or by the European Court ofHuman Rights. In Lopez Ostra v. Spain, the court consid-ered government objections in this regard unfounded and

said that “where a situation under consideration is apersisting one, the Court may take into account facts occur-ring after the application has been lodged and even afterthe decision on admissibility has been adopted.”

Following Lopez Ostra, other environmental casessoon appeared, such as Guerra v. Italy (see appendix B),where the court held that the petitioner’s right under article8 of the Convention had been infringed even though therewas no showing of potential physical harm. Rather, theauthorities had failed to provide necessary environmentalinformation to the applicants so that they could be prop-erly informed about environmental risks from a chemicalfactory. This case is also interesting because the court leftopen the consideration of a claim under article 2 of theConvention (right to life). The court stated that, “althoughthe object of Article 8 is essentially that of protecting theindividual against arbitrary interference by the publicauthorities, it does not merely compel the State to abstainfrom such interference: in addition to this primarily nega-tive undertaking, there may be positive obligationsinherent in effective respect for private or family life.”

A 2001 decision by the court, Hatton and others v.United Kingdom (application no. 36022/97), goes furtherthan Lopez Ostra and Guerra to apply article 8 to thequality of the inquiry that a government must undertake indecision-making that affects “private and family life”.20

Applicants living near London Heathrow airport claimedthat a 1993 scheme instituted by the airport significantlyincreased the noise levels to which they were subjectedduring the night, causing ill health in violation of theirrights. The case turned on the UK government’s argumentthat, in instituting the 1993 scheme, a balance had beenstruck between private interests and economic interests,according to article 8(2) of the Convention.

The court focused on the government’s limited researchinto the nature of sleep disturbance before the scheme wasput in place, as well as on the poor quality of governmentresearch into the economic benefits of night flights. Thecourt found that the government had failed to generateadequate information and to undertake the research neces-sary to justify its contentions. Given this, the governmentwas found to have “failed to strike a fair balance” betweenthe applicants’ rights and a state economic interest in theimplementation of the 1993 scheme.



In 1993, Canada, Mexico and the US signed the NorthAmerican Agreement on Environmental Cooperation(NAAEC) — also called the NAFTA Side Agreement. Theagreement established a unique procedure for citizencomplaints to a supranational body about non-enforcementby a party of its environmental law. While not without itscritics, it is probably the only quasi-judicial forum on inter-national level designed especially for consideration ofenvironmental complaints, and it represents an importantachievement of contemporary international environmentallaw in the sphere of access to justice.

As provided by article 1 of the NAAEC, the objectives ofare to:

• foster the protection and improvement of the environ-ment in the territories of the parties for the well-beingof present and future generations;

• promote sustainable development based on coopera-tion and mutually supportive environmental and eco-nomic policies;

• increase cooperation between the parties in improvingthe conservation, protection and enhancement of theenvironment, including wild flora and fauna;

• support the environmental goals of NAFTA;

• avoid creating trade distortions or new trade barriers;

• strengthen cooperation on the development andimprovement of environmental laws, regulations, pro-cedures, policies and practices;

• enhance compliance with and enforcement of environ-mental laws and regulations;

• promote transparency and public participation in thedevelopment of environmental laws, regulations andpolicies;

• promote economically efficient and effective environ-mental measures; and

• promote pollution prevention policies and practices.

The agreement provides for a special institutionalmechanism designed to facilitate and oversee its imple-mentation by the parties — the Commission forEnvironmental Cooperation (CEC). The procedure ofcitizen submissions on enforcement matters is covered byarticles 14 and 15 of the agreement. Together with theCitizen Submission Guidelines, these articles provide thelegal basis for the submission and consideration of citizens’complaints.

In general, the procedure is as follows. Any NGO orperson can lodge a submission to the secretariat, assertingthat a party is failing to enforce its environmental law effec-tively. If such a submission meets certain admissionrequirements, the secretariat determines whether thesubmission merits requesting a response from the partyconcerned (the country against which the submission wasfiled). After the response from the party, the secretariat caninform the council that developing a factual record iswarranted. If the council so instructs, the secretariatprepares such a factual record, which can then be madepublicly available by another decision of the council.

One criticism against this procedure is that “environ-mental law” is narrowly defined. Another criticism is that aparty may not be held to have failed to enforce its envi-ronmental law where the action or inaction in question byagencies or officials of that party:

(a) reflects a reasonable exercise of their discretion inrespect of investigative, prosecutorial, regulatory orcompliance matters; or

(b) results from bona fide decisions to allocate resources toenforcement in respect of other environmental mattersdetermined to have higher priorities.


Chapter 3Access to justice at the international level:

Citizen enforcement under the North American Agreement on

Environmental CooperationAndriy Andrusevych

Valid submissions may not extend to legislative steps,e.g. adopting new regulations, even if adoption of thenew legislation suspends the implementation of the oldlegislation.21

For a submission to be considered it must meet certaintechnical requirements. Once the submission has success-fully passed this stage, the Secretariat determines whetherit warrants a response from the concerned Party. Indeciding whether to request a response, the Secretariatshall consider whether:

(a) the submission alleges harm to the person or organiza-tion making the submission;

(b) the submission, alone or in combination with othersubmissions raises matters whose further study in thisprocess would advance the goals of the Agreement;

(c) private remedies available under the party’s law havebeen pursued; and

(d) the submission is drawn exclusively from reports in themass media.

With respect to point (a), the guidelines provide that, inconsidering whether the submission alleges harm to theperson or organisation making the submission, the secre-tariat will consider, among other factors, whether thealleged harm relates to the protection of the environmentor the prevention of danger to human life or health (butnot directly related to worker safety or health), as stated inarticle 45(2) of the agreement.

This definition of harm is broad enough to allow forsubmissions concerning the protection of the environmentand natural resources without proof of individual harm.This was the approach of the secretariat in the Cruise ShipPier Project submission.22

With respect to point (c), the guidelines do not requireexhaustion of national remedies. In some cases a mereattempt (or reasonable efforts) to use private remedies wasenough to meet this requirement.23

If the secretariat decides that the submission merits aresponse from the party, it informs the party about thesubmission by sending a copy to the party, together withany additional information.

The response from the party shall be sent within 30

days (in exceptional circumstances, 60). The considera-tion process can be terminated if the party advises thesecretariat that the matter is the subject of a pending judi-cial or administrative proceeding. The guidelines definethis as follows:

(a) a domestic judicial, quasi-judicial or administrativeaction pursued by the party in a timely fashion and inaccordance with its law. Such actions comprise: medi-ation; arbitration; the process of issuing a license, per-mit, or authorization; seeking an assurance of volun-tary compliance or a compliance agreement; seekingsanctions or remedies in an administrative or judicialforum; and the process of issuing an administrativeorder; and

(b) an international dispute resolution proceeding towhich the party is part.

According to secretariat case-law, only proceedingsthat are designed to culminate in a specific decision, ruling,or agreement within a definable period of time may beconsidered as falling within this provision. Activities thatare solely consultative, information-gathering or research-based in nature, without a definable goal, are not sufficientto trigger the automatic termination clause.24 Moreover, theparty must provide evidence that the proceedings areongoing and meet the requirements.

In addition, the guidelines provide that the party mayinclude in its response whether environmental policieshave been defined or actions taken in connection with thematter in question.

Following this stage, the council may instruct the secre-tariat to compile a factual record. The votes of two of thethree council members are required for such a decision.That is at least one of the factors that has led to a very smallnumber of decisions on the preparation of factual records.By the end of November 2001, only eight out of 31 submis-sions resulted in a council instruction to the secretariat toprepare factual records.25 The final factual record may bemade public by the two-thirds vote of the council. This isthe end of the process. As such, it has a similar force todecisions of an ombudsman. By the end of January 2002,two factual records had been completed by the secretariat,approved by the council, and made public.



1 Doors to democracy, four volumes, op. cit.

2 See also E/CN.4/Sub.2/1994/9, annex I.

3 See Cameron, James & Abouchar, Juli, The status of the precautionaryprinciple in international law, in Freestone and Hey, The precautionaryprinciple and international law: The challenge of implementation, TheHague: Kluwer, 1996, p 48, nn. 62-69.

4 See Fitzmaurice, op cit., pp. 910-11 and accompanying footnotes. AlsoMahoney, K.E. & Mahoney, P. (eds), Human rights in the 21st century,Dordrecht, 1993. See especially the articles by Trinidade and Handl.

5 See President of the Tribunal of First Instance of Antwerp, April 20, 1999,unreported.

6 See also Shemshuchenko, Y., Human rights in the field of environmentalprotection in the draft of the new Constitution of the Ukraine, in Deimann,S. & Dyssli, B. (eds), Environmental rights: Law, litigation and access to jus-tice, London: Cameron May, 1996, pp. 33-40. The author states on p. 35:“the human right to a healthy environment is actually the right of an indi-vidual to demand the maintaining of ecological standards, set up by law.”

7 In the subject case, the fact that no provision had been made in theamendments to offer such a level of protection once the forests were tohave passed into private hands was evidence that the state had failed in itsbasic responsibility to ensure an objectively high level of environmentalprotection. Thus, the court invalidated the amendments.

8 Pres. Trib. Anvers, 2 fevrier 1999, en cause de: S.G., P.M. et co. c/I.S.C.R.L., Kluwer Editions Juridique Belgique, Amenagement-Environnement, 1999/3, 228, overruled on other grounds.

9 President of the Tribunal of First Instance of Antwerp, April 20, 1999,unreported.

10 20 E.H.R.R. 277, 1995.

11 Nov. 4, 1950, 213 U.N.T.S. 222, as amended. Ibid., p. 230. Article 8,entitled Right to respect for private and family life, states: (1) Everyone has the right to respect for his private and family life, his homeand his correspondence; and (2) There shall be no interference by a publicauthority with the exercise of this right except such as is in accordance withthe law and is necessary in a democratic society in the interests of nation-al security, public safety or the economic well-being of the country, for theprevention of disorder or crime, for the protection of health or morals, orfor the protection of the rights and freedoms of others.

12 The European Declaration on Human Rights is now applicable in mostof the countries in the UNECE region.

13 In the words of Kofi A. Annan, Secretary-General of the UN. SeeForeword, Implementation guide, op. cit.

14 Thus, it addresses one of the shortcomings in the establishment of theright to a healthy environment — that is, the lack of effective implementa-tion. See E/CN.4/Sub.2/1994/9.

15 The background of the Aarhus Convention and in particular the linksmade by its preamble are treated in greater detail in Implementation guide,op. cit., especially pp. 12-13, 16-17.

16 Opinion of the ICJ, Legality of the threat or use of nuclear weapons,1996, pp. 241-242.

17 Lopez Ostra v. Spain (1995) 20 E.H.R.R 277, paragraph 51.

18 Article 6(1) of the Convention states: “In the determination of his civilrights and obligations or of any criminal charge against him, everyone isentitled to a fair and public hearing within a reasonable time by an inde-pendent and impartial tribunal established by law.”

19 E.g., see Skarby v. Sweden (A/180-B): (1990) 13 E.H.R.R. 90, paragraph27.

20 As the case is still pending in the Grand Chamber, the judgement hasnot yet become effective and will do so only upon final judgement by theGrand Chamber of the ECHR. See Teßner, Dirk, Night flights at LondonHeathrow violate human rights, 1 ELNI Review 29, 2002, for a detailedhandling of the case.

21 See the Spotted Owl submission by Earthlaw, Submission A14/SEM/ 95-001/06/14(2).

22 See Recommendation of the secretariat to council for the developmentof a factual record in accordance with articles14 and 15, SEM-96-001, June7, 1996.

23 Ibid.

24 SEM-97-001/B.C. Hydro recommendation of the secretariat to the coun-cil, April 27, 1998.

25 See Stanton Kibel, Paul, Awkward evolution: Citizens enforcement at theNorth American Environmental Commission, 32 Envtl. L. Rep. 10769,2002.


Part II: Endnotes


Part IIICase Studies


PA R T I I I : C A S E S T U D I E S



The cases that follow were generated during the devel-opment of the handbook. These case studies were submit-ted by national focal points for the Aarhus Convention inresponse to a request from the government of Estonia (theAccess to Justice Task Force lead country), and by inde-pendent, non-governmental lawyers and NGOs in responseto announcements made by the project team.

The announcements soliciting case studies requestedthat case studies be submitted in a standard format. Casestudy authors were encouraged to provide commentary,and were required to take into account the views of all par-ties and stakeholders involved. A standard letter was pro-vided for this purpose.

In addition, most of the case studies were submitted tocomments by members of the Project Steering Committeeand were further developed according to a predeterminedtemplate. Virtually all case studies provided by countrieshave been included in the handbook. Of those providedby NGOs and lawyers, the selection criteria included rele-vance to the Aarhus Convention, geographical scope andthe range of subjects covered. The goal was to have casesfrom as many countries and on as large a range of subjectsas possible. A number of the cases from Central Europeand the EECCA region were generated during a Sub-Regional Case Study Development Meeting held in Lviv,Ukraine, June 4-5, 2001.

Case studies were collected until July 2002 and werecurrent at this time.

The analysis of each case study was written by therespective authors and submitters. Every effort was madeto clarify the issues found in each case, through dialoguewith the authors and revision of the studies, and the caseswere edited to ensure consistency. In addition, the casessubmitted by non-governmental lawyers and NGOs weretransmitted to the Aarhus Convention focal points in thesubject countries for commenting. Nevertheless, it is virtu-ally impossible to verify all aspects of cases coming from avariety of sources in such a wide and diverse geographicalregion. Thus, the editor and the states and organisationsinvolved in the publication of the handbook cannotassume responsibility for the content or for any viewsexpressed in the cases.

Appendix B, entitled, “Other cases and backgroundmaterials,” consists of significant cases and relevant mate-rial that have been identified in the course of research inthe development of the analytical part of the handbook,but which for one reason or another could not be fullydeveloped according to the methodology above. Thesecases are generally presented in original form, oftenabridged, but unedited. In some instances, summaries ofthe cases have been written especially for the handbook.

Case study methodology




Table of cases

Cases

COUNTRY AND CASE NAME AARHUS CONVENTION KEYWORDNUMBER PROVISION

Armenia

Case 1 Victory Park Case Article 9(2), Article 9(3) Right to public participation, remediesArticle 9(4)

Austria

Case 1 Enns River Road Case Article 9(2) Legal standing

Belgium

Case 1 Representative Article 9(2) Legal standingStanding Case

Case 2 Special Procedure Article 9(2) Legal standingCase

Case 3 Organisational Mission Article 9(2) Legal standingStanding Case Article 9(3)

Bulgaria

Case 1 Pirin Mountain Case Article 9(2)(b) Improper procedure for public participation

Case 2 Elshitza Case Article 9(3) Improper procedure for public Article 9(4) participation/injunctive relief



Cases


Czech Republic

Case 1 Sumava National Article 6(4), Article 9(2) Legal standingPark Case Article 9(3), Article 6(3)

Case 2 Gravel Mining Case Article 9(2) Legal standing

Case 3 Bohemian Article 9(2), Article 9(3) Lack of judicial reviewHighway Case Article 6(4)

Georgia

Case 1 Defence of National Article 9(2) Sufficient interest/financial and otherPark Case Article 9(5) barriers

Case 2 Vake Park Case Article 9(1), Article 9(2) Legal standing/financial and Article 9(3), Article 9(5) other barriers

Germany

Case 1 Waste Fuel Plant Case Article 9(4) Legal standing/injunctive relief

Case 2 Experts’ Documents Case Article 9(1) Improper procedure for public Article 9(2) participation

Case 3 Windmill Case Article 9(2) Legal standing

Case 4 Nature Reserve Case Article 9(2), Article 9(3) Legal standing/injunctive relief Article 9(4)

Case 5 Baltic Sea Article 9(2), Article 9(3) Legal standing/injunctive relief Motorway Case Article 9(4)

Case 6 Elbe Case Article 9(2) Legal standing/injunctive relief Article 9(3)

Hungary

Case 1 Balaton Highway Case Article 9(2), Article 9(4) Legal standing

Case 2 Metal Plant Case Article 9(1) Access to information

Kazakhstan

Case 1 Petrol Plant Case Article 9(4) Improper procedure for public participation

Case 2 Waste in the Article 9(3) Legal standing/enforcement of law Caspian Case Article 9(4)

Case 3 Excessive Fees Case Article 9(4) SLAPPs/barriers to effective public participation

Lithuania

Case 1 Extra-Judicial Proceeding Article 9(3), Article 9(4) Extra judicial procedureCase

TA B L E O F C A S E S


Cases


Moldova

Case 1 Sarmi Park Case Article 9(1), Article 9(2) Access to information/public Article 9(3), Article 9(4) participation/injunctive relief

Netherlands

Case 1 Oily Bird Case Article 9(2), Article 9(3) Legal standing

Case 2 “Indispensable” Article 9(3), Article 9(4) Legal standing/injunctive relief/Pesticides Case financial and other barriers

Poland

Case 1 Highway and Article 9(2), Article 9(3) Improper public participation procedureHousing Case Article 9(4)

Russia

Case 1 Water Works: A Case Article 9(2), Article 9(3) Improper public participation in Progress Article 9(4) procedure/remedies

Case 2 Nikitin Case Article 2(3), Article 3(8) Access to information/fair, equitable Article 9(4) and timely procedure

Case 3 Shrinking Park Case Article 9(2)(b), Article 9(3) Legal standing/injunctive relief/Article 9(4) access to information

Serbia and Montenegro

Case 1 Silver Plate Case Article 9(3), Article 9(4) Enforcement of administrative decisions

Case 2 Zvesda Cafe Case Article 9(3), Article 9(4) Enforcement of administrative decisions

Case 3 Cacak Case Article 9(2) Improper procedure for public participation

Spain

Case 1 Nuclear Files Case Article 9(1), Article 9(4) Financial, time and other barriers Article 9(5)

Case 2 Aznalcollar Waste Article 9(3), Article 9(4) Financial and other barriers Dam Case Article 9(5)




Ukraine

Case 1 Ukrainian Right to Article 9(1) Access to information Know Case Article 9(4)

Case 2 NGO Right to Article 9(1) Access to information Information Case Article 9(4)

Case 3 Pyrogovo Villagers Case Article 9(3) Legal standing/remedies

Case 4 Troublesome Cafe Case Article 6, Article 9(2) Improper procedure for public Article 9(4) participation/remedies

Case 5 Access to Article 2, Article 4 Access to information Information Case Article 9(1)

United Kingdom

Case 1 Lappel Bank Case Article 9(4) Legal standing/injunctive relief

Case 2 Agricultural Storage Article 9(4) Financial barriers Centre Case Article 9(5)

United States

Case 1 Telephone Case Article 9(2) Insufficient information for effective Article 9(4) public participation

Cases

The Victory Park CaseResidents seeking to stop ongoing construction of a

large development in order to secure their rights to partic-ipate in decision-making on the project, faced considerableobstacles in attempting to use the courts.

Relevant Aarhus provisions

• Articles 9(2), (3) and (4)

Key issues

• Standing

• Injunctive relief

• Unbiased and objective approach of judges

Case study detailsCited case name: The Proposed Development of Hotel inVictory Memorial Park, Yerevan City, Armenia

Parties involvedPlaintiffs: Two citizens, residing near Victory Park,Yerevan CityPlaintiffs’ representation: Environmental PublicAdvocacy Center, ArmeniaDefendants: General architect, Golden Palace HotelComplex; Republic of Armenia, Prime Minister

Background facts In the city of Yerevan, Armenia, Victory Park is a

revered place of natural beauty and civic pride. Establishedin 1945, the multi-acre park serves as a memorial to WorldWar II veterans and a home to numerous species of plants

and wildlife. On this long designated protected area, alldevelopment and construction are prohibited except forthose projects approved for “functional” purposes.

In 2000, Yerevan Municipality authorities approved apreliminary proposal for the construction of the GoldenPalace, a large hotel complex situated on park grounds.On October 9, 2000, however, the mayor of Yerevanissued a resolution stating that a construction permitwould not be granted until an environmental impactassessment (EIA) of the project had been performed,reviewed and approved by officials.

Under Armenian law, any proposed developmentequal to or more than 1,000 square metres must have anEIA. In this, the proposed project qualifies. In addition, EIAregulations require that the assessment entail a three-stagepublic hearing in which interested parties can evaluate theEIA and advise the ultimate decision-making.

Despite this, on October 11, 2000, only two days afterthe mayor’s order, the general architect overseeing theproject ordered the beginning of construction. In response,the General Prosecutor’s Office warned the architect thatcommencing construction was illegal. Nevertheless, con-struction continued.

Residents located near Victory Park filed a lawsuitagainst the architect.

Procedural history Enlisting the legal representation of the Environmental

Public Advocacy Center (EPAC), the residents filed a com-plaint before the court of first instance, asserting that thearchitect proceeded with construction in violation of EIAregulations. In doing so, the architect had denied the resi-dents the opportunity to participate in proceedings regard-ing the hotel development and its impact on the environ-ment and community. Further, in order to preserve avail-able remedies throughout the proceedings residentsrequested an injunction to halt further construction.1 Thecourt denied the residents’ request for an injunction.


Armenia Case 1

After more than two months, the hearing of the casebegan. The architect, however, did not attend, sendinginstead a certificate asserting that the commencement ofconstruction was valid. In short order, the court dismissedthe lawsuit without addressing the merits of the claim.

Final outcome Construction onsite continues. An EIA and attendant

public hearing have not been performed.

Related actions and campaignsUsing the Internet and the Caucasus Environmental

NGO Network (CENN), information has been disseminat-ed about the illegal construction and its potential conse-quences.

Access to justice techniques Plaintiffs attempted to stop construction and ensure

EIA proceedings by filing a lawsuit and requesting injunc-tive relief. In preparation of the lawsuit, EPAC organisedstrategy meetings with other NGOs, mass media, architectsand representatives of the General Prosecutor’s Office.Based on the meetings, EPAC sent interrogatories (officialquestions) to the mayor, the prime minister and the gener-al prosecutor regarding the facts of the case and allegedviolations of law. For example, EPAC requested that themayor provide information on the following:

• the Mayor’s resolution on hotel construction;

• whether an EIA had been carried out;

• the conclusion of the EIA (if one had been carried out);and

• whether public meetings were held concerning theproject, as required by EIA rules.

Based on this information, EPAC then assembled its case.

Case study analysisLike many nations, Armenia has several laws on the

books that grant citizens access to justice in the form ofNGO standing, public hearings and judicial review. As thiscase study illustrates, however, printed laws need to be

enforced in practice by government officials and thecourts.

In the instant matter, EIA rules state precisely that proj-ects such as the one at issue require an EIA and that thepublic has a right to participate in the proceeding. Yet thecourt balked at issuing an injunction that would preservethat right by halting construction. It is common for thecourt not to issue injunctions in environmental matters,given its lack of familiarity with environmental laws.However, it is in these matters where they are most oftenrequired. If injunctions are to become a viable “access tojustice” tool, then courts must rise to the challenge and seetheir value.

Aiding in this process would be the reforming ofanother matter arguably present in this case — the non-independence of the judiciary. Particularly in environmen-tal cases, where judicial review of government actions iscommon, the judiciary must see itself not as an arm of thegovernment authority but rather as a neutral conduitthrough which citizens and the government can resolvedifferences. The most common example of this problem isin the area of public participation. Similar to injunctions,procedural rights to participate and be informed are essen-tial “access to justice” tools. In the instant case, the courtdid not go far enough to preserve this right. Instead, it sac-rificed the public’s participatory rights in the interest of“efficiency” and appeasing well-heeled interests.

If access to justice laws are to have any significance, thecourts of Armenia and elsewhere must do more to bringthem into the light of the courtroom.

Contacts

Aida Iskoyan, Environmental Law ProfessorPresident, Environmental Public Advocacy Center (EPAC) 11 Parpetsi Str., Apt. 1 375002 YerevanArmeniaTel/Fax: +37-41-530-669 (w)Tel: +37-41-539-255 (alt)E-mail: [email protected], [email protected]

Vardan Grigoryan, Erna Tadevosyan, EPAC lawyersAddress as aboveTel/Fax: +37-41-530-669 (w) Tel: +37-41-539-255 (alt)



Enns River Road CasePlans to construct a road along the Enns River would

cut through areas that are under the protection of theNatura 2000 regime. Various stakeholders used differentaccess to justice means to contest the plans.

Relevant Aarhus provision

• Article 9(2)

Key issues

• Standing

• Public participation during the preparation of execu-tive regulations and/or generally legally binding nor-mative instruments

• Access to administrative and judicial review procedures

Case study detailsCited case name: Planned construction of new roadalong riverside of Enns River

Parties involvedPlaintiffs: Local communities, several people from theregion and their groups, citizens’ group “NETT”Defendants: Government of the province of StyriaThird-party intervenors: WWF Austria, Vogelwarteassociation for bird protection

A special investigation procedure was initiated by theEuropean Commission against the Government of Austria,based on complaints submitted by WWF Austria and otherinterest groups.

Background facts The construction of a road along the Enns River was

under discussion for 25 years. At first a motorway wasproposed, and then it was downsized to a regular Federalroad (Bundesstrasse). The old road led through cities andvillages of the region. The new road was planned to belocated far away from where people live, close to thewaterside, cutting through a protected area with endan-gered species of birds.

Since Austria became a member state of the EuropeanUnion, huge parts of the location came under the protec-tion of the Natura 2000 regime.

The opinions of people from the region were dividedover the project, and it became a complicated issue bothpolitically and legally. The final decision had not beentaken as of late 2001, but it appeared likely that the roadwould never be constructed.

Procedural history For the construction of the road, according to Austrian

legislation, several legal acts and administrative decisionswere necessary:

1) a ministerial decree (Verordnung) defining the exactlocation of the road (similar to the building permit);

2) a local government decision (permit) according to thenature protection law of the province of Styria;

3) an “exceptional” decision legalising the road construc-tion in the protected area (contrarius actus to the actgranting protection status);

4) a water consent/permit, as the road was planned veryclose to the riverside and several dwellings of landowners could have been affected; and

5) an expropriation of the farmers and other affected landowners not willing to sell the land required for the proj-ect, and the ecological compensation measures.


Austria Case 1

With regard to (1), groups opposing the construction ofthe road brought a lawsuit to the Constitutional Court ofAustria, but did not succeed. The decree was still in force.

The law on federal roads was very restrictive when itcame to legal standing issues: No legal standing for neigh-bours, citizen groups or NGOs. The reason citizensaddressed the Constitutional Court of Austria and not theAdministrative Court was that the Administrative Court wasonly competent for complaints against individual decisionsof administrative authorities, not against ministerial decrees.

In terms of (2), the decision, according to the appli-cable law, could only be issued for a limited period of timeand had expired. There was no valid permit according tothe nature protection law at the moment. Taking intoaccount the developments of the last years (Natura 2000,LIFE project) a positive decision appeared to be mostunlikely in late 2001. The nature protection law of theprovince of Styria granted no legal standing for neigh-bours, citizens of the region or NGOs, so these groupscould only act through contacts to politicians and otherforms of lobbying.

Regarding (3), the contrarius actus was to be set by thelocal government of Styria. The “Ombudsman for nature”(Umweltanwalt) of the province of Styria had legalstanding in the procedure and brought a lawsuit to theAdministrative Court, but the remedy was unsuccessful.NGOs and citizen groups had no legal standing in theprocedure.

In point (4), the authority responsible for the roadconstruction first claimed that a water consent would notbe necessary and started construction of a bridge(Sallaberger Brucke). Expertise later brought evidence thatthe whole infrastructure project would need a waterpermit. Finally a water consent procedure was started, butnever came to a successful end. The Administrative Courtruled twice that the permit was granted illegally. TheFederal Water Law of Austria gave legal standing to neigh-bours and all persons whose (water) rights could beaffected. WWF Austria and other groups and organisationsestablished good cooperation with affected persons andtogether they twice brought a lawsuit to the AdministrativeCourt and were successful in both cases. As of late 2001there was no water consent for the project.

With regard to (5), the nature consent (as long as it hadnot expired) obliged the road construction authority to setecological compensation measures. To carry them outspecific pieces of land were needed, but owners were notwilling to sell and an expropriation procedure was initi-ated. The land owners went to the Administrative Court,which ruled that, according to existing legislation, expro-priation for ecological compensation measures was notpossible. It soon became clear that the road could not bebuilt legally without setting these ecological compensationmeasures. The expropriation issue therefore became themajor obstacle for the project.

Final outcomeThe court decided that the water consent was granted

illegally and the expropriation was not possible. Thusthere was no possibility to carry out the project under thecurrent legal situation. In the meantime the law waschanged (Lex Ennstal). According to the new provisions,the expropriation for ecological compensation measureswould be possible, after carrying out an EIA. But politi-cians finally decided against the project and found adifferent solution (improvements along the existing road),although the decree fixing the line of the road (the buildingpermit) still existed at the date of writing the case. One ofthe main reasons a (political) change was needed was thatsince Austria became a member state of the EU the Natura2000 system became legally binding. But the most impor-tant factor to the success was the consequent work ofNGOs and citizens’ groups providing information, exertingpolitical pressure and using all possible legal remedies.

Related actions and campaignsSince Austria became a member state of the EU, a new

obstacle was raised for the people in favour of the roadconstruction: The Natura 2000 system. The WWF and othergroups objecting to the road project referred to the respec-tive EU legislation at an early stage to stop the project. Itwas proven that an endangered bird species(Wachtelkonig) lives in the project area. A comprehensivecomplaint was sent to the European Commission, whichinitiated investigations against the Austrian government.Parallel to this, a LIFE project was carried out in the regionto raise awareness.

Access to justice techniquesNeither the water law of Austria nor the nature protec-

tion law of the province of Styria gives a right to theauthorities to expropriate land from the owners for thisspecific case (ecological compensation measures).

The wells of the land owners next to the projectterrain were threatened — giving the land owners legalstanding in the procedure and proving that the consentwas granted illegally.

Case study analysisThe main obstacles to access to justice were related to

the high fees for the lawyers for appeals to the ConstitutionalCourt and the Administrative Court in Austria. This moneywas provided, among others, by WWF Austria.

Close cooperation between local residents and peoplefrom the region, the WWF, the European Commission andother parties involved was an important element in thesuccess of the case.

Using the water consent procedure — where local resi-dents have legal standing — to bring forward all relevant


H A N D B O O K O N AC C E S S TO J U S T I C E U N D E R T H E A A R H U S C O N V E N T I O N94

arguments, and opposing the expropriation by using allpossible remedies, were key elements contributing to thesuccess of the case.

At least as important as the legal remedies was theinformation to all people involved (local, regional andfederal politicians) about the facts based on scientificevidence put on the table by NGOs and citizens’ groups.

Comments of participants in the process

“The whole very long story showed that legal standingof neighbours and other persons likely to be affectedwas the prerequisite for the successful fight for theenvironment. A future legal standing of NGOs and citi-zen groups would be a very big step ahead. Thesegroups then would not be dependent on co-operationbeing established with neighbors/affected persons andcould act independently and in addition to them. I

think that implementation of the Aarhus Convention inthe Austrian legislation could help or even guaranteethat these improvements will be made soon.”

— Stefan Moidl

Contacts

Stefan MoidlWWF AustriaTel: +43-1-4881-7256 (w)E-mail: [email protected]

Birgit Stangl

NETT (citizens’ association)

Tel: +43-4-357-2038 (w)


AU S T R I A C A S E 1

95



Representative Standing CaseWhat is considered to be a “personal” and “direct”

interest in order to have access to any court in Belgium, beit administrative, civil or criminal, varies from one proce-dure to the next (and sometimes from case to case), inparticular concerning access to justice of environmentalorganisations.


• Article 9(2)

Key issues

• Standing

• Criteria for defining a direct and personal interest

Case study detailsCited case name: Council of State,2 September 11, 1981,No 21.384, A.S.B.L.3 Werkgroep voor milieubeheerBrasschaat Supreme Court, November 19, 1982, S.A.Sipedic vs. A.S.B.L. Werkgroep voor milieubeheerBrasschaat

Parties involvedIn front of the Council of State: Plaintiffs: A.S.B.L. Werkgroep voor milieubeheerBrasschaat Defendant: The Flemish Region4

In front of the Supreme Court: Plaintiff: S.A. Sipedic Defendant: A.S.B.L. Werkgroep voor milieubeheerBrasschaat.

Background factsThe matter concerned the designation of the

“Eikendael domain” (located in Brasschaat) as being ofhigh ecological value.

An enterprise (S.A. Sipedic) that owns the Eikendaeldomain wished to build apartment blocks for elderlypeople in the area. The spatial planning regulation wasmodified in order to change the designation of theEikendael domain and thus allow the construction of theapartment blocks.

The A.S.B.L. Werkgroep voor milieubeheer Brasschaat,wanting to protect the area, contested this new spatialplanning regulation.

Procedural historyIn front of the Council of State

In order to challenge an administrative act in front ofthe Council of State, and according to the case law of theCouncil of State,5 the plaintiff must prove a direct andpersonal interest.

In an environmental context, and regarding individ-uals, the personal and direct interest is determined withrespect to the proximity between the (potential) effects ofthe administrative act and the individual. What is consid-ered to be a personal and direct interest thus varies fromcase to case, depending, inter alia, on the nature of theactivity authorised by the act (hence, 150 metres betweenthe activity and the residence of the individual may beclose enough in one case, and too far away in another).

Regarding environmental associations, the Council ofState either examines whether the association is consid-ered to be “representative,” as in the present case, orassesses whether the association’s statutory goal is suffi-ciently specific and likely to be affected by theadministrative act in question (see Belgium Case 3). TheCouncil of State sometimes combines the two criteria.

In this case, the Flemish Region asked the Council ofState to assess whether a non-profit organisation, whose


Belgium Case 1

statutory purpose is defined by the founding membersthemselves, may be considered to have a personal anddirect interest in challenging an administrative act in frontof the Council of State, and, if so, what distinguishes suchan action from the actio popularis.

The Council of State replied that:

• Non-profit organisations may defend a public interest,and may define for themselves the level and the nature ofthe interest they wish to defend (freedom of association).

• The protection of the environment is a public interest.

• In order to be able to challenge an administrative act infront of the Council of State, the non-profit organisationonly has to fulfil one condition: it must be consideredrepresentative of the group whose interests it claims todefend. According to the Council of State, that condi-tion is fulfilled if the assent (“adhesion”) of the mem-bers of the group is so large that it may be assumed thatthe points of view of the organisation coincide with thepoints of view of the members of the group the organ-isation claims to represent. This assumption must berebutted by the adverse party (in the present case, theFlemish Region failed to rebut the assumption, andA.S.B.L. Werkgroep voor milieubeheer Brasschaat wasthus considered to be representative and was grantedaccess to the Council of State).

In front of the civil courtsPending the outcome of the annulment procedure in

front of the Council of State, the A.S.B.L. Werkgroep voormilieubeheer Brasschaat asked the civil courts (the presi-dent of the court of first instance) to suspend the spatialplanning regulation.6

The president of the court of first instance consideredA.S.B.L. Werkgroep voor milieubeheer Brasschaat to havea sufficient interest because the organisation pursues theprotection of the environment of Brasschaat and theEikendael domain (located in Brasschaat) maintains itsdesignation of “high ecological interest.” The court of firstinstance suspended the regulation.

S.A. Sipedic lodged an appeal against the decision, butthe Court of Appeals, on March 12, 1981, confirmed thedecision of the court of first instance.

S.A. Sipedic filed a complaint in front of the SupremeCourt, contesting whether A.S.B.L. Werkgroep voormilieubeheer Brasschaat should have been grantedstanding and access to justice under the suspension proce-dure since, according to S.A. Sipedic, a statutory purposecannot be considered to be a personal and direct interest.

The Supreme Court agreed with S.A. Sipedic anddeclared that a personal and direct interest of a legalperson only includes its own material and moral rights(reputation), and not its statutory purpose. The SupremeCourt ruled that even if the organisation may be consid-

ered to have a personal and direct interest in anothercontext (i.e. the annulment procedure in front of theCouncil of State) this does not imply that it has a personaland direct interest in front of the civil courts. The SupremeCourt thus reversed the decision of the Court of Appeals.

The Supreme Court has confirmed its standpointseveral times since, both regarding civil and criminal cases.

Final outcomeThough the Council of State granted access to the

A.S.B.L. Werkgroep voor milieubeheer Brasschaat, thelatter failed to convince the Council of State that the spatialplanning regulation was illegal. The regulation was thusnot annulled.

The inferior civil courts suspended the regulation, butas explained above, the Supreme Court reversed the deci-sions. In short, the apartment blocks were constructed.

Related actions and campaignsNone reported.

Access to justice techniques The NGO used parallel proceedings to attack the

spatial planning regulation before the Council of State andthe civil courts.

Case study analysisThis case presents an obstacle to non-profit organisa-

tions wishing to challenge environmentally harmful acts infront of the Belgian civil and criminal courts. As explainedabove, in determing whether an NGO has standing, theCouncil of State uses a representative criterion. TheCouncil of State does not, however, specify the “group”that the organisation is supposed to represent.

With regard to the Supreme Court, a personal anddirect interest of a legal person only includes its own mate-rial and moral rights (reputation) and not its statutorypurpose. The A.S.B.L. Werkgroep voor milieubeheerBrasschaat tried to convince the Supreme Court that, sinceit had been granted access to the Council of State for theannulment procedure, it should also be granted access tothe civil courts for the suspension procedure. The SupremeCourt clearly refuted the argument: the fact that the associ-ation has been granted access to the Council of State doesnot imply that it should have access to the civil courts. Thisposition of the Supreme Court was confirmed a few yearslater, in a similar case,7 where an environmental associa-tion tried to convince the Court that access to the Councilof State under the annulment procedure is a personal(procedural) right, the effectiveness of which should beprotected by the civil courts through the suspension of thecontested act pending the outcome of the annulment



procedure.8 The Supreme Court replied that the allegedprocedural right is not enough to counterbalance a“proper” (substantial) right (i.e. the right to construct,granted by the authorisation in question). Some authorshave interpreted the position of the Supreme Court tomean that an environmental association might be grantedaccess to justice in front of civil courts if the adverse partydoes not assert a “proper right.” The Supreme Court hasnot had the chance to confirm this yet.9

Contact

C. LarssenTel: +32-2-650-3405E-mail: [email protected]


B E L G I U M C A S E 1

99



Special procedureResidents joined with a non-profit environmental

organisation to make use of a specific procedure (action encessation) that the legislature introduced in order to over-come the obstacle detailed in Belgium Case 1, resemblingthe suspension procedure.


• Article 9(2)

Key issues

• Standing

• Procedure for judicial review

Case study detailsCited case name: President du tribunal civil de Namur(President of the civil tribunal of Namur), referes,10 July31, 2000, Aeroport de Bierset

Parties involvedPlaintiffs: S. Tassier et al. Defendants: S.A. Societe de developpement et de promo-tion de l’aeroport de Bierset, the Walloon Region, S.A. TNTExpress Worldwide, S.A. C.A.L. Cargo Airlines Third-party intervenors (for the plaintiffs): ASBLInter-Environnement Wallonie

Background factsThe legislature introduced a specific procedure by law

on January 12, 1993, resembling the suspension procedurefor certain non-profit environmental organisations (as wellas for the public attorney and for administrative authori-

ties). However, in order to have access to this specificprocedure, the environmental organisation has to fulfilseveral conditions:

• It must be a Belgian registered non-profit organisation(A.S.B.L.) — this excludes international NGOs.

• It must have existed for at least three years.

• The organisation’s statutory goal must be related to theprotection of the environment and its by-laws mustspecify the territorial coverage of the organisation(local, regional, national).

• The organisation must prove that the actual activities ofthe organisation correspond to its statutory goal.

People living around the Bierset airport (in theWalloon Region), supported by the A.S.B.L. Inter-Environnement Wallonie (the most importantenvironmental organisation in the Walloon Region), askedthe president of the court of first instance to prohibit alltake-offs and landings between 10 p.m. and 7 a.m. in orderto reduce the noise created by the aircraft.

Procedural historyThe defendants (the three enterprises detailed above

and the Walloon Region) objected to the standing of theplaintiff (a natural person) and the intervening parties (incl.A.S.B.L. Inter-Environnement Wallonie), contending thatthey did not have a personal and direct interest in the case.Regarding the legal person (A.S.B.L. Inter-EnvironnementWallonie), the defendants referred to the case law of theSupreme Court (see Belgium Case 1) according to whichan environmental organisation may not rely upon its statu-tory purpose for access to the civil courts.

The president of the first court of instance replied that:

• The civil courts have jurisdiction over personal rights(droits subjectifs);


Belgium Case 2

• The right to a healthy environment, as provided for inthe Belgian Constitution (article 23), is not a personalright per se, but is “illustrated” (the president’s ownword) by other norms, such as the law of January 12,1993 creating the special procedure for environmentalorganisations (see introduction to the present case);

• The A.S.B.L. Inter-Environnement Wallonie may haveaccess to the normal suspension procedure since theorganisation would have been granted access underthe special procedure and the legislature, by creatingthis special procedure, recognises the importance ofcollective interests.

Final outcomeThere was no appeal of the decision of the president of

the court of first instance of Namur, since he found that thematter was not urgent, and thus that he did not have theauthority to prohibit flights under the emergency procedure.

Related actions and campaignsParallel to the suspension procedure described above,

the plaintiffs (and other persons) also filed a classicliability claim in front of the court of first instance of Liege,which decided, on February 9, 2001, to grant standing to alarge number of the plaintiffs. The decisions (CFI and

Court of Appeals) were still not publicly available as ofAugust 2002, and the case was still pending before theCourt of Appeals.

Access to justice techniques Access to justice of A.S.B.L. Inter-Environnement

Wallonie was linked to the constitutional right to a healthyenvironment, linked in turn to the procedural right createdby the law of January 12, 1993.

Case study analysisBecause of the strict conditions for applicability of the

specific procedures, few environmental organisations haveactually managed to make use of the procedure. Bycreating the special procedure, the legislature clearlyavoided approval or disapproval of the case law of theSupreme Court. In principle, therefore, environmentalorganisations still do not have access to the “normal”procedures. But the creation of this special procedure hasencouraged some inferior courts to bypass the case law ofthe Supreme Court, as shown by the present case.

Contact

C. LarssenTel: +32-2-650-3405E-mail: [email protected]



Organisational Mission Standing CaseThree NGOs caused the Council of State to examine

how the statutory goal of an organisation, which must besufficiently specific and likely to be affected by the admin-istrative act in question, could confer standing to challengethe act.


• Articles 9(2) and (3)

Key issues

• Standing

• Statutory purpose

Case study detailsCited case name: Council of State, July 7, 2000, no88.687, A.S.B.L. Reserves naturelles, A.S.B.L. Aves,A.S.B.L. WWF-Belgium

Parties involvedPlaintiffs: A.S.B.L. Reserves naturelles, A.S.B.L. Aves,A.S.B.L. WWF-Belgium Defendant: the Walloon Region

Background factsThe spatial planning regulation of Liege was modified

by the Walloon Region in order to allow the installation ofa landfill site on an area called Sur Hez. This area is of greatbiological interest, namely for the special kind of frog(crapaud calamite) that lives there.

Three environmental organisations, wanting to protectthe area, asked the Council of State to suspend the spatialplanning regulation.

Procedural historyIn order to be able to contest the spatial planning regu-

lation likely to threaten a protected frog species, theplaintiffs — three environmental associations — tried toprove their personal and direct interest before the Councilof State as follows:

• The A.S.B.L. Reserves naturelles – whose statutory goalis to promote nature conservation, especially throughthe creation of natural reserves – owns several naturalreserves close to the area in question.

• The A.S.B.L. Aves — whose statutory purpose is to pro-mote nature conservation, and in particular wild birdprotection — has shown a great interest in frogs.

• The A.S.B.L. WWF Belgium — whose statutory purposeis to promote, in Belgium as well as in other parts of theworld, the conservation of fauna, flora, sites, waters,soils and other natural resources — is interested in thearea because it is home to many protected species.

More generally, the plaintiffs asked the Council of Stateto consider principle 10 of the Rio Declaration and article 9of the Aarhus Convention.

The Council of State replied that:

• The first part of the statutory purpose of the A.S.B.L.Reserves naturelles (promoting nature conservation) isnot distinct from the general interest and therefore can-not be regarded as a personal and direct interest,whereas the second part (creating and protecting natu-ral reserves) is not relevant to contest the spatial plan-ning regulation, since the A.S.B.L. Reserves naturelleshas not acquired land and created natural reserves inthe area likely to be affected by the regulation.

• The first part of the statutory purpose of the A.S.B.L.Aves (conservation of wild fauna) is not distinct fromthe general interest and therefore cannot be regarded


Belgium Case 3



as a personal and direct interest, whereas the secondpart of the statutory purpose (protection of wild birds)does not cover the protection of frogs.

• The statutory purpose of WWF Belgium — to promote,in Belgium as well as in other parts of the world, theconservation of fauna, flora, sites, waters, soils andother natural resources — is not distinct from the gen-eral interest, and WWF Belgium did not prove that thefrog in question (crapaud calamite) is a threatenedspecies (in which case WWF Belgium might have a suf-ficient interest11).12

The Council of State thus did not refer to the represen-tative criteria (see Belgium Case 1), nor did it considerarticle 9 of the Aarhus Convention. The Council of Stateonly examined whether the statutory purpose of eachorganisation was considered to be sufficiently distinct fromthe general interest and sufficiently close to the matterconcerned (birds/frogs), to find, in the present matter, thatnone of the three environmental organisations fulfilledthese conditions.

Final outcomeNone of the three environmental organisations was

granted access to the Council of State. The landfill sitecame under construction.


Case study analysisThis case entails considerable uncertainty: What might

be considered to be a personal and direct interest of anassociation varies — as with natural persons — from onecase to the other. The statutory purpose of an organisationoften does not help to establish its interest.

Comments of participants in processThe lawyer of the three environmental organisations

said that, had Belgium ratified the Aarhus Convention andhad the Convention been in force, then the Council of Statemight have concluded differently (although the caseconcerned a regulation and not an individual act cf. article9, §2 of the Convention).

Contact

C. Larssenphone: +32-2-650-3405E-mail: [email protected]

104

Pirin Mountain CaseLimited opportunity for judicial review and narrow

interpretations of procedural rights hindered NGOs’ effortsto halt development in Pirin Mountain National Park untilofficials allowed interested parties to participate in EIAproceedings.


• Article 9(2)(b)

Key issue

• Standing

Case study detailsCited case name: Protection of Pirin MountainNational Park

Parties involvedPlaintiffs: Association for the Wild Nature — Balkani(AWN), Centre for Environmental Information andEducation (CEIE), Eco Club 2000, Bulgarian BirdProtection Association, ecological association “For theEarth,” non-governmental association Green Balkans(collectively “NGOs”)Defendant: Ministry of Environment and Waters (MOEW)Third-party intervenor (for defendant): Municipality ofBansko JULEN, interested investor

Background facts Pirin Mountain National Park, located in southern

Bulgaria, is a UNESCO natural site (one of only 18 suchsites in Europe protected under the Convention forProtection of the World Natural and Cultural Heritage).

Over the past 10-15 years several attempts have beenmade to build ski resorts in the area, including some thatwould extend into the national park. Before 1998, severalof these efforts were successful. In 1998, however, theProtected Areas Act (PAA) was passed designating nationalparks as protected areas and prohibiting the constructionof new sport facilities (article 21, para.1 of PAA). Consistentwith this act, the national park was operated under amanagement plan regulating growth and use of the park.

The Municipality of Bansko, located adjacent to thepark, had a thriving winter tourism industry and sought todevelop a ski resort complex that would extend to portionsof the Pirin Mountain located within the park. The devel-opment plan for this complex — The Plan forDevelopment of Ski-Zone-Centre Bansko (“the Plan”) —directly contravened the park management plan.

Providing for the clear-cutting of 60 hectares of pinetrees and dwarf pine, the Plan was submitted to the MOEWfor an environmental impact assessment (EIA) in 2000. InJuly 2000, MOEW granted conditional approval of the Plan.Three conditions (paragraphs 11, 12 and 13 of the deci-sion) required that Bansko supply missing data andinformation within the EIA. In effect, MOEW’s acceptanceof the Plan, which legally must turn, in part, on a completeEIA, was already granted and awaited necessary changesto become official.

MOEW never made amendments to the Plan or madethe EIA report publicly available, nor did the agencyinvite citizens or NGOs to participate in the decision-making process.

Procedural history NGOs filed a complaint before the Supreme

Administrative Court (court of first appeal), seekingto challenge MOEW’s decision. In asserting theirclaim, NGOs made the following legal arguments:

• The Plan contravened the national park’s managementplan in that proposed activities within the protected


Bulgaria Case 1

area as well as outside the area would endanger sever-al protected species of animals and plants. Further in-park development would destroy protected habitats ofpine trees and dwarf pines.

• MOEW’s conditional acceptance of the Plan was inviolation of EIA procedures that state if an EIA isincomplete, the report must be sent back to the sub-mitting party.

• In accordance with the Environmental Protection Act(EPA), MOEW’s decision at this stage of review shouldhave been considered a “positive EIA decision” and notan “approval” of the Plan. MOEW’s acceptance of thePlan was premature.

The court dismissed the claim, given MOEW’s instruc-tions to amend the EIA, holding that a final decision hadnot been made and thus the NGOs’ lawsuit could not yetbe reviewed on administrative appeal.

In February 2001, upon word that paragraphs 11, 12and 13 were fulfilled and MOEW had approved the Plan,two of the NGOs, the Association for Wild Nature (AWN)and the Centre for Environmental Information andEducation (CEIE), resubmitted their complaint before theSupreme Administrative Court.

In addition to the prior arguments, the two NGOsasserted that the approval process was invalid becausethe MOEW never submitted the amended version of thePlan and the EIA report to public discussion (article 23aof the EPA).

The NGOs requested that the court hear the testimonyof independent experts who would address the amendedPlan and EIA report, in particular whether they metMOEW’s conditions and whether the Plan would lead tothe destruction of protected species and habitat.

On July 12, 2001, the court ruled in favour of MOEW.In its decision, the court stated the following:

• While some plants, animals and habitat would bedestroyed, the development would not lead to thedestruction of an entire species nor impede the repro-duction of these species.

• Clear-cutting would occur but to a minimum extent.

• The court stated that the Plan did not contravene thepark’s management plan, but rather replaced it (this isarguably a mistake of fact — the proposed Plan onlyrefers to a portion of the national park to be used inconjunction with development outside the park).

The court did not address the claims that MOEW’s EIAwas invalid for wont of proper participation procedures.The court’s only reference to the topic was to say that theoriginal EIA was submitted for public discussion. It failedto discuss the amendments to the Plan or the EIA.

Final outcome On July 10, 2001, two days before the court’s decision,

the Bulgarian Council of Ministers conceded the right touse part of the national park to Bansko. Under this deci-sion, the conceded portion of the park, consideredexclusive state property, was leased to Bansko as conces-sionaire. That party is obliged to invest in the park andafter a certain period (20-30 years), the park reverts to stateownership.

The two NGOs submitted an appeal of the court’s deci-sion to a higher court (cassation appeal). The appeal wasrejected by the Administrative Court in September 2001.The motives of the Appeals Court (consisting of fivemembers of the Supreme Administrative Court) weresimilar to those formulated by the court of first instance.

The case was still pending in 2002, however, becausethe MOEW submitted to separate EIA procedures of all theski runs in the Plan after the approval of the Plan forDevelopment of the Pirin Mountain — Region Bansko.These procedures finished with EIA decisions, issued bythe MOEW. These decisions were appealed in theSupreme Administrative Court and the Court had notpronounced its decisions.

Meanwhile, the MOEW adjusted its procedures fromthe end of 2001 to stipulate — in some of its decisionscontaining conditions — that the decision will enter intoforce (and will be published) after the conditions providedin the decision are fulfilled. However, the MOEW has notapplied this approach to all EIA decisions, which stillrequired clarification (this is the question of the equalapplication of the law to the different persons).

Related actions and campaignsThe NGO community started a campaign to lobby the

MOEW to stop the concession procedure. In July 2001,NGOs and several other organisations requested an openmeeting with MOEW officials to discuss the matter. Themeeting took place on August 10 and yielded valuableinformation that was used in the appeal. But there was noresolution of the matter.

In addition, in July and August 2001, and again in 2002,NGOs organised a series of press conferences, and othermeetings and campaigns to promote their position.

Access to justice techniques NGOs challenged the government’s decision through

participation in approval proceedings, administrativeappeals and by filing legal complaints for judicial review.

In the course of judicial review, NGOs requested thatthe court review the EIA report independently, rather thanrelying solely on the testimony of the government agency.Towards this end, NGOs offered the testimony of expertsand their own findings.




Case study analysisBoth the court’s refusal to hear expert testimony inde-

pendent of MOEW and its failure to address possibleprocedural violations bring into question the degree towhich the court was independent in its review.

Moreover, the court’s erroneous conclusion concerningcitizens’ right to review amended documents and partici-pate in attendant discussions suggests that participatoryrights have yet to move to the forefront as essential issuesin judicial reviews.

Contacts

Parties to the proceeding

Hristo Bojinov, DirectorNational Service for Nature Protection E-mail: [email protected]

Vania Grigorova, EIA ExpertNational Service for Nature Protection E-mail: [email protected]

Author of case study

Alexander Kodjabashev, Attorney at LawEcological Association DemeterE-mail: [email protected]

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Elshitza CaseSubstantive violations of the EIA rules were ignored

by the court of first instance and a request for an injunc-tion to stop the illicit activity was rejected despite clearevidence submitted by the plaintiff.



Key issues

• Direct enforcement


• Fair, timely and equitable review procedures

Case study detailsCited case name: Angel Petrov v. Marin Blaguiev —tradesman by profession

Elshitza case — lawsuit against illicit waste transporta-tion and storage initiated by the local initiative committeewith the District Court in Panagiurishte.

Parties involved

Plaintiffs: Angel Lazarov Petrov on behalf of the Elshitzalocal committeePlaintiff’s representation: Ecological AssociationDemetraDefendants: Marin Vassilev Blaguiev — tradesman byprofessionThird-party intervenors (for the defendant): EcoElshitza Llc, Elshitza Village; Niciola Pushkarov Institutefor Soil Information

Background factsA waste sedimentation basin existed near the village of

Elshitza. During the 20-30 years prior to the case, it hadserved the copper mine Elshitza. After the completion ofthe deposits, the mine stopped operating and the sedi-mentation basin became a reclamation project. Severalproposals had been submitted, and after the EIA wasconducted one project was selected. It provided a claysealing layer followed by a soil covering and forestationwith acacia and other suitable tree species. The projectkicked off in early 1999, but was stopped soon after. TheMinistry of Industry shifted its support to another projectwhich called for sealing the waste copper sediments withso-called “soil cement” (polymeric material) and thencovering it up with stabilised sewage sludge originatingfrom Plovdiv’s wastewater treatment plant. The project wasproposed by Marin Blagiev who was issued a waste trans-portation and storage permit by the Ministry ofEnvironment and Waters (MOEW) on February 22, 2000.The identification code of the waste cited in the permissionwas 19.08.05, which classified it as non-hazardous.

In Plovdiv, the second largest city in Bulgaria, severalfactories do not have wastewater treatment plants andregularly discharge industrial wastewater in the citysewage system. For this reason, the sewage sludge fromthe plant was deemed the seventh largest hazardous wastesubstance in the country in 1997.

When the new project for transportation, storage anduse of this waste to fertilise grazing land near the villageElshitza began without an EIA or public participation,some Elshitza inhabitants founded a local initiativecommittee to oppose the government’s decision.

Procedural historyThe chairman of the committee, Angel Petrov, filed a

personal complaint stressing the violation of his humanrights as a hedge against eventual objections concerning thestanding of the committee. The claim was lodged at the


Bulgaria Case 2

Panagjurishte District Court against the executor of theproject. The main thesis was that the defendant had inten-tionally misled the MOEW in its permit application byclaiming the sewage sludge from the Plovdiv treatmentplant was not hazardous. The defendant knew that thePlovdiv plant treated both city and industrial wastewaterbecause some of the local factories did not have theirown plants.

The plaintiff asked the court to invalidate the permitand to order the defendant to cease the transportation andstorage of the dangerous waste near the Elshitza village.The court was also asked for an injunction prohibitingcontinued transportation of the sludge in order to preventfurther damage, but this request was rejected.

During the proceedings an ecologist conducted achemical analysis and confirmed the conclusions of severalpreliminary experts’ reports that the sewage sludge washazardous according to national legislation.

The court ignored these conclusions and did not takeinto account the law approving the annual report ofMOEW for 1997. Instead, the court granted the defendant’sassertion that the absence of a special section forhazardous waste treatment in the plant proved that thesewage sludge was not hazardous. The claim was rejectedand the defendant submitted a demand for excessivelyhigh court expenses.

The third-party intervenors had been called to join theprocess in order to help the defendant without having anyparticular interest. They did not help substantially, but theirabsence caused the hearings to be postponed several timeswhile the defendant was continuing the waste transporta-tion activities.

During the hearings, the ecologist changed hisconclusion in favour of the defendant. The court did notraise the question of false testimony even though theexpert clearly gave contradictory explanations for thesame facts.

The permit was issued without an EIA or public partic-ipation in the decision-making process in contradiction ofthe Environmental Protection Act and the Regulation forEnvironmental Impact Assessment. The EIA wascompleted by the time the project wrapped up, but theMOEW had refused to stop the activity.

In the proceedings, it was claimed that the issuing ofthe permit was legally defective in several ways:

• The new project did not have a complete EIA proce-dure, and a public participation procedure had notoccurred before the issuing of the permit.

• The MOEW did not take into account that the Plovdivwastewater treatment plant treated not only ordinarycity wastewater but some industrial water as well. Thelatter contained many hazardous substances becausesome of the factories discharged directly into thesewage system without pretreatment.

• The MOEW did not take into account its annual reportfor the state of the environment for 1997 approved bythe Parliament and published in the National Gazette.In this report, the MOEW pointed out that Plovdiv’swastewater plant was the seventh largest dangerouswaste site in Bulgaria at the time. One of the motivesfor the waste transportation from the vicinity of Plovdivwas to solve a major ecological problem of the villagewhere the waste was initially stored.

Final outcome During the first instance proceedings, waste transporta-

tion and storage continued. The plaintiff appealed the first instance court judge-

ment before the Pazardjk Regional Court, but the secondinstance proceedings had not begun by mid-2002. Thereason for the delay was a gap in procedural rulesconcerning the delivery of the subpoenas and othermessages, including judgements, to the litigants.

In addition, during five months of proceedings, theSupreme Administrative Court still had not deliveredsubpoenas to the MOEW or Marin Blagiev’s company.

Related actions and campaignsThe members of the Elshitza committee made every

effort to stop the project. They met with members ofParliament, two successive environmental ministers,local authorities and journalists. The committee membersstaged campaigns for civil disobedience. They managedto persuade the mayor of Panagjurishte to issue an ordi-nance to stop the waste transportation, which wasshortly thereafter rescinded by the regional governor.

Access to justice techniques The committee filed a complaint at the Panagjurishte

District Court against the holder of the waste transportationand storage permit. However, it also filed complaints with:

• the MOEW to cancel the permit and to compel thedefendant to stop the waste transportation; and

• the Supreme Administrative Court against the MOEW.

Case study analysisThe first instance court neglected clear, substantial viola-

tions of the law — the EIA was not carried out as requiredby article 20 of the Environmental Protection Act and theRegulation of the EIA; the proposed new project was notdiscussed publicly; and the permit was issued in violation ofa law defining this particular waste as hazardous. All of thesewere reasons to invalidate the permit.

The court refused to issue an injunction against the




illegal activity, giving the defendant the opportunity tocause further environmental damage during court proceed-ings. The law defining hazardous waste was ignored alongwith other facts proving the presence of hazardoussubstances in the sewage sludge stored near Elshitza.

The civil procedure is not geared to dispatch cases withmajor public interest because the terms provided are notclearly defined and defendants can prolong the proceduresin many ways. In particular, the gap in procedural rulesconcerning delivery of subpoenas and other documentsallowed litigants to prolong cases without justification.

Contacts

Michael Kodjabashev, Attorney at Law Ecological Association Demeter44 Vassil Levski Blvd.Sofia, BulgariaEmail: [email protected], [email protected]

Ecological Association Demeter16 Skobeleb Blvd. Entr.2Sofia, BulgariaTel: +35-92-526-956

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SumavaCzech NGOs seeking judicial review of state logging

practices in Sumava National Park were blocked by rigidstanding requirements failing to recognise an NGO’s broadenvironmental interests as actionable.


• Articles 6(3) and (4), 9(2) and (3)

Key issues

• Administrative standing

• SLAPP suits

• Review of public participation in decisions on specif-ic activities

• Environmental and human rights protection

Case study detailsCited case name: Logging in the Core Zone of theSumava National Park

Parties involvedPlaintiffs: Hnuti DUHA (Friends of the Earth CzechRepublic — hereafter NGO)Plaintiff’s representation: Environmental Legal Service,a public interest legal organisationDefendants: Sumava National Park Authority, adminis-trator of Sumava National Park; Czech Ministry ofEnvironment — reviewing authority for appeal againstfirst-level decisions

Background factsFrom 1998-2001, the Sumava National Park Authority

(“Sumava”) logged throughout an area within the parkdesignated as Zone 1, or the most strictly protected zone interms of conservation. The stated justification was controlof bark beetle infestations. Despite the logging, the beetlepopulation expanded, spurring increasing protests fromenvironmental and inter-governmental groups, includingthe IUCN and WWF, that the tree-cutting actuallycontributed to the infestations.

In seeking permission to log in Zone 1, Sumava’s ForestManagement Department (forest maintenance body)requested a permit from Sumava’s State AdministrationDepartment (forest supervisory body) pursuant to theCzech Forestry Act. According to the Act, the decision tolog could come only through an administrative procedure,in which interested parties could apply to participate in theproceedings and offer recommendations in the course ofdecision-making. However, the party requesting permis-sion to log and the party making the final decision are, infact, departments within the same governmental body.

In cases like these, delays in initiating public proceed-ings are common. Moreover, when a party seeks an appealof the State Administration Department’s decision, thedepartment typically overrides any injunction, citing timepressures and the urgency to begin logging.

The Ministry of Environment (“Ministry”), whichoversaw the Sumava Park Authority, consistentlysupported the park’s logging policy and handling of theapproval proceedings.

In 1998, in order to expand logging operations beyondZone 1, the Sumava Park Authority requested from theMinistry an exception to the legal protection regime ofspecially protected species of plants and animals providedfor in the Landscape and Nature Protection Act. Accordingto this Act, exceptions are possible only when anotherpublic interest overrides the wish to protect designatedspecies. The Ministry granted the exception stating that thelogging operation was itself an act of environmental


Czech Republic Case 1

protection and therefore no conflict existed with the aimsof the Act.

Hnuti DUHA (Friends of the Earth Czech Republic), aregional environmental NGO, filed administrativecomplaints in response to both the Ministry’s granting ofthe permit and the Sumava Park Authority’s approval oflogging in Zone 1.

Procedural historyEvery year when Sumava Park managers applied to

log in Zone 1, the NGO participated in the attendant deci-sion-making proceedings.

In response to the park authority’s approval oflogging, the NGO filed administrative appeals to theMinistry. Each year, the following assertions were made:

• Procedural Violations — The conflict of interest in hav-ing park authorities decide whether park managers canconduct logging prevented independent decision-mak-ing and was in violation of the Czech AdministrativeProcedure Act (APA). Moreover, the NGO asserted thatdelays in initiating public proceedings, suppressinginformation, and the commencement of logging amidjudicial appeals also contravened the APA.

• Environmental Substantive Violations of Law — Theapproval of logging in Zone 1 was in violation of theSumava National Park Act and Landscape and NatureProtection Act.

Each year, the Ministry ruled in favour of Sumavaauthorities. Subsequently, the NGO filed complaintsbefore the High Court in Prague, reasserting the abovearguments and the following:

• undue prejudice by the Ministry in allowing logging tocommence; and

• denial of the right to a fair administrative hearing in vio-lation of Declaration of Fundamental Rights andFreedoms, article 36.

Ministry exceptions to the Landscape and Nature Protection Act for logging

The NGO filed a complaint before the High Court inPrague, seeking judicial review of the Ministry’s decision toallow an exception to the Landscape and Nature ProtectionAct for logging purposes. To have its complaint consideredby the court, the NGO argued that, as the Ministry had aduty to “act/proceed according to law,” the right musttherefore exist for participants in related decision-makingprocesses to ensure that this duty is carried out, citingsection 3 of the Administrative Procedure Act.

The High Court did not grant the NGO standing,

holding that “the rights of NGOs could not have beenviolated, because NGOs have no substantive rights insimilar administrative processes.” The court further addedthat violating the law in itself does not constitute interfer-ence with the substantive rights of NGOs.

Using its constitutional right to bring a complaint to theConstitutional Court of the Czech Republic against interfer-ence with basic constitutional rights, the NGO filed anappeal asserting a violation of the Declaration ofFundamental Rights and Freedoms, article 36 (right to a fairtrial). The NGO argued that a substantive right existed inthe right to a lawful decision-making process (again citingsection 3 of the Administrative Procedure Act).

The Constitutional Court ruled against the NGO,holding that participants in such matters have only “proce-dural rights,” which do not include the right to a lawfuldecision-making process.

Additionally, the NGO filed a complaint with theNational Environmental Monitoring Agency and later fileda criminal complaint against the responsible employees ofthe Sumava National Park Authority.

Final outcome In response to the Constitutional Court’s ruling, the

NGO filed a complaint with the European Court of HumanRights (application) under article 34 of the EuropeanConvention of Human Rights, asserting that the Czechcourt acted in violation of article 6, section 1 of theConvention — denying it a right to a fair trial. Thecomplaint was refused.

The National Environmental Monitoring Agency foundthat there was a violation of law and imposed a financialpenalty on the responsible bodies. The criminalproceeding was still ongoing in August 2002.

Related actions and campaignsIn 1999, Hnuti DUHA organised a three-month, non-

violent blockade of Zone 1. The Environmental LawService provided legal counsel to participants and repre-sented eight of the accused in settlements with authorities.In ensuing lawsuits, the law service defended the individ-uals. Misdemeanour proceedings against the individualseventually ended due to the statute of limitations.

In 2001, members of the Czech Parliament, dissatisfiedwith the Sumava National Park Authority’s actions,proposed reducing the area of the national park. In themeantime, the Environmental Law Service (ELS), theNGO’s legal counsel, prepared an alternative billproposing exclusion of Zone 1 from logging, whileaddressing the factors motivating the clear cuts. Neither billwas passed and the matter was expected to be taken up bythe new Czech government formed in July 2002.




Access to justice techniques The NGO attempted to challenge the government’s

decision through participation in approval proceedings,administrative appeals, and by filing legal complaints forjudicial review. The case was finally appealed to theEuropean Court of Human Rights. In related actions, theNGO filed criminal complaints.

Case study analysisTo hold that citizens only have a procedural right to

participate in proceedings but no vested interest in seeingthat the procedures are lawful is to frustrate the verypurpose of citizen involvement. The right to speak alone isan empty grant to citizens and a substantial barrier toaccessing justice. By their rulings, the courts relegatecitizen participation to a “feel good” gesture rather thanallowing it to be an effective safeguard and check ongovernment action.

Contacts (Environmental Law Service): Concerning administrative processes

Vitezslav Dohnal, EPS Tabor Kostnicka 1324 39001 TaborTel: +42-361-256-662Fax: +42-361-254-866E-mail: [email protected]

Concerning complaint to the EuropeanCourt of Human Rights

Pavel Cerny, EPS Brno Bratislavska 31 60200 Brno Tel: +35-42-575-229Fax: +35-42-210-347E-mail: [email protected]

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Gravel Mining CaseA Czech NGO seeking judicial review of state logging

practices in the Sumava National Park was blocked bystanding requirements that failed to recognise an NGO’sbroad environmental interest as a basis for standing.


• Article 9(2)

Key issues

• Review of public participation in decisions on specificactivities

• Administrative Standing

• Extraordinary legal remedy/review

Case study detailsCited case name: Village Nedakonice v. Gravel-MiningCompany Sterkovny Ostrozska Nova Ves

Parties involvedPlaintiffs: Village NedakoniceDefendants: Gravel mining company SterkovnyOstrozska Nova Ves; Regional Czech Mining Office Third-party intervenors: Environmental Law Service(ELS), an environmental public interest legal organisation;citizens association of Nedakonice community (not a partyto lawsuit)

Background facts Beginning in 1997, Nedakonice, a village along the

Czech-Slovakian border, contested the proposed develop-

ment of a gravel mining operation by Sterkovny OstrozskaNova Ves (Nova) next to the village. Amid constant objec-tions from village authorities and residents, Nova took itsproposed mining operation through the required three-step assessment and permitting process.

During the first stage, conducted in 1998, the miningcompany filed its claim to a mineral deposit and sought toprevent any other development on the subject property.According to Czech regulations, the Ministry of theEnvironment and the Regional Czech Mining Officeoversaw this stage, conducting an environmental impactassessment (EIA) of the site. In addition, it had become theunstated policy of mining officials that only mining compa-nies were permitted to participate in this first stage —regardless of the site’s proximity to a community.

In 1999, the case entered its second phase in which theboundaries of the mining site were defined by the RegionalCzech Mining Office. According to regulations, nearbymunicipalities and residents had a right to participate indetermining the surface area of the mining operation.However, similar to stage one, the Mining Office seldomallowed public participation in practice. In previous cases,the Mining Office had stated that because mining does notofficially take place after this stage, substantive rights arenot actually affected.

During the first two stages, plaintiffs sought to partici-pate in the proceedings and ultimately sought judicialreview of the decisions of the Mining Office (the case didnot involve the third stage — actual commencement ofmining activities).

Procedural history Stage One

Plaintiffs filed an extraordinary appeal before theCentral Czech Mining Office, challenging the granting ofNova’s mineral deposit claim.13 Plaintiffs claimed thatdenying nearby residents the opportunity to participate inthe proceeding violated their right to a fair trial by an inde-





pendent and impartial court or other state body and theright to demand protection of their rights, citing theDeclaration of Fundamental Rights and Freedoms, articles11(4) and 36(1). In addition, plaintiffs asserted that theowners were in fact affected by the establishment of themining claim in that it foreclosed all other uses of the land.

The Central Czech Mining Office dismissed the appeal.The plaintiffs did not appeal.

Stage TwoDuring stage two, only the Environmental Law Service

was able to take part in the proceedings. Curiously, whilean NGO was able to participate in a proceeding concerningthe proportions of surface area of the operation, miningofficials ruled that the matter would not affect the village ofNedakonice and therefore they could not participate.

Two strategies were pursued in appealing this ruling:1) Plaintiffs appealed this decision on behalf of the

village before the Central Czech Mining Office. The appealwas summarily dismissed.

Subsequently, plaintiffs brought an appeal before theConstitutional Court of the Czech Republic, asserting thatthe Mining Office’s denial of participation violated article100 of the Constitution (right of communities to self-government) and the Declaration of Fundamental Rightsand Freedoms, article 36(1) (right to fair trial) and article36(2) (“when a state administration body affects one’srights, that person make seek judicial relief”).

In 2000, the Constitutional Court dismissed the plaintiffs’complaint, holding that a complaint should be submittedupon a final decision in the proceedings (i.e. when a finaldecision on issuance of a permit had been made).

2) In a separate complaint before the Central CzechMining Office, concurrent with the first, plaintiffs assertedthat, in denying the village from participating, mining offi-cials violated the Landscape and Nature Protection Act, theWater Pollution Act, the Administrative Procedure Act andconstitutional legislation. In 2000, the Czech Mining Officedismissed the appeal.

Final outcome Plaintiffs brought an administrative appeal of the latter

decision, a matter that was still pending as of July 2002.The Constitutional Court’s decision dismissing ELS’scomplaint was the final decision on the appeal of the areadetermination. The parties planned to challenge the third

stage (commencement of mining activities) decision if itpermitted the mining to take place.

Related actions and campaignsPlaintiffs prepared leaflets for local citizens

concerning legal protection of proprietary rights andrights to public participation in decision-making.

In addition, ELS, besides providing legal aid, advisedthe village on how to increase the natural value of itssurrounding countryside via revitalisation. In this effort, itenlisted the Moravian Regional Museum in Brno, whichwrote a biological monitoring study for the territory inquestion and assisted in developing an outline of theoverall revitalisation project.

Access to justice techniques Plaintiffs attempted to challenge the government’s deci-

sion through participation in approval proceedings andadministrative appeals and by filing legal complaints forjudicial review at each stage of the approval process. Theyused the interesting legal tool of the extraordinary legalremedy to collaterally challenge the legality of a decision.

Case study analysisDenying nearby villages and their residents the right to

participate in any stage of a mining permit proceedingsends a strong signal that public participation rights maystill be a hollow promise in the Czech Republic. Miningofficials’ refusal to grant local residents the opportunity tobe heard points to a government agency still beholden toprivate interests — a problem that can only be resolved incourt. Plaintiffs’ appeals and lawsuits, while proceedingunsuccessfully at the moment, will pave the way forgreater access to justice by the precedents they establishand the citizens they motivate.

Contact

Vitezslav Dohnal, EPS Tabor Kostnicka 1324 39001 Tabor Tel: +36-1-256-662Fax: +36-1-254-866 Email: [email protected]

118

Bohemian Highway CaseHindered by not being able to seek judicial review until

the tendering of a final decision on a massive highwayproject, environmental NGOs employed various strategiesat essential preliminary stages that would have benefitedfrom judicial scrutiny.


• Articles 6(4), 9(2) and (3)

Key issues


• Administrative review procedure

• Adequate and effective remedies

Case study detailsCited case name: Building of the D8 motorway throughprotected areas in northern Bohemia

Parties involvedPlaintiffs: Children of the Earth Czech Republic, an envi-ronmental NGOPlaintiffs’ representation: Environmental Law Service, apublic interest legal organisationDefendants: Ministry of Environment; Road andMotorway Directorate of the Czech Republic (RMD), thestate body responsible for building and maintaining high-ways; District Office in Usti nad Labem, responsible for theadministrative procedure in issuing building permits

Background facts In 1963, the communist government approved a plan

for the construction of new highways throughout theformer Czechoslovakia, including the proposed D8Motorway, which was never constructed. However, in1993, four years after the Velvet Revolution, Czech officialsresurrected the highway plan as a way to boost theeconomy. The D8 Motorway was part of the new plan.

Prior to 1993, however, the land through which the D8Motorway would run was designated as the CeskeStredohori Protected Area. The planned highway wouldalso traverse the Krusne Hory Nature Park.

Under the Czech Nature and Landscape Protection Act,highway construction was prohibited in designatedprotected areas, except for limited exceptions granted bythe Ministry of Environment for the promotion of “publicinterest.” Citing economic factors, the Ministry granted anexception for the D8 Motorway, allowing approvalproceedings for the project to commence. As Czech lawrequires that the District Planning Office grant permissionfor the construction of a proposed route through a naturepark, this permit was applied for and granted.

The Children of the Earth CZ and the EnvironmentalLaw Service (“NGOs”), two regional environmental NGOs,opposed these decisions. However, judicial review of theMinistry’s decision or any other decision during prelimi-nary proceedings was not permitted according to Czechadministrative law. Only final permit decisions could bereviewed by the Administrative Court. As a result, theNGOs’ only recourse was to participate in every stage ofthe proceedings leading to a final decision and attempt toinfluence decision makers.

Procedural history Environmental Impact Assessmentproceedings (1994-1995)

In 1994, officials conducted EIAs for the two crucialsections of the D8 Motorway that traversed the designated



protected area and nature park. The NGOs participated inthis process, filing a complaint that officials were breachingEIA procedural rules and refusing to assess alternate routesaround the areas. Most importantly, officials wereconducting EIAs for individual segments of the highwayonly. The NGOs asserted that to understand the full envi-ronmental impact, an EIA for the entire proposed highwayshould be conducted.

The NGOs’ objections mirrored similar complaintsmade nationwide throughout the 1990s. However, offi-cials failed to act on their concerns. In the absence of afinal decision, judicial review of the EIA proceeding wasnot possible.

Ministry’s exception to the Nature andLandscape Protection Act (1998-2000)

In 1995, the RMD asked the Ministry of Environment foran exception from the prohibition of building a motorwayin the Ceske Stredohori Protected Area. This was verysignificant, as an exception to the Nature and LandscapeProtection Act had never before been granted for a highwayproject. The administrative procedure that followed wascrucial to the motorway project and ended with the Ministrydenying the permit in 1998. However, the RMD appealed tothe minister and the refusal was reversed. In 2000, theMinistry issued the exception from the law.

The NGOs had delivered testimony asserting that thepublic interest in protecting the natural resources inCeske Stredohori was more important than the interestsserved by constructing a motorway through the area. Inthe issued exception, the Ministry rejected this opinion,stating that the motorway was in fact in the publicinterest, of greater importance than keeping the protectedarea free of highways.

Again, judicial review of the Ministry’s decision wasnot an option given that an overall decision on thehighway had not yet been made.

Permission to traverse Krusne Hory NaturePark (1999-2000)

In this procedure, the District Planning Office had toconsider the extent to which the planned motorway wouldinterfere with the landscape character of the park and toconsider feasible alternate routes. NGOs testified in thisproceeding, making concrete suggestions and alternativesolutions, which were set aside. The District PlanningOffice approved the planned route in 1999 and the Ministryaffirmed this decision in 2000.

Construction placement permission (2000-present)

According to procedure, permission to begin ahighway project is issued by the District Planning Officeand is conferred one segment at a time. Typically, thegranting of a construction permit — the final decision — isa routine decision influenced heavily by the preceding

stages. The NGOs testified against permit approvals for thetwo segments crossing the protected area and nature park.

The NGOs lost their case against permitting construc-tion on the segment through the nature park. The permitwas issued in the spring of 2002, but the NGOs’ appealagainst this decision was still pending in July 2002. TheNGOs’ main argument was that an international EIA proce-dure was required pursuant to the ESPOO Conventionbecause this section of motorway was next to the borderwith Germany. In addition, they claimed that there werepotential conflicts between the plan and EU environmentallaw, especially the Habitats Directive (92/43EEC).

Final outcome The NGOs planned to file a complaint before the

Administrative Court when finally able to seek judicialreview. Their hope is that the highway would bererouted into a tunnel beneath the protected area. Theyalso held out the prospect to go to EU authorities with acomplaint about violation of EU law after the CzechRepublic’s accession.

Related actions and campaigns

• Children of the Earth and other local NGOs conductedseveral non-violent demonstrations.

• Children of the Earth ordered several expert studies toexplore alternate routes and improvements to the exist-ing plan. These were mostly ignored by officials.

• As construction of the motorway was to be partlyfinanced by the EU, NGOs planned to notify responsi-ble EU authorities that the motorway would cross aprotected area that was a candidate for a listing on theEECONNECT network.

Access to justice techniques While NGOs fully used their participation rights, they

also attempted to challenge interim decisions.

Case study analysisAdministrative review of interim decisions was unavail-

able. In the Czech legal system, administrative review isonly available after the rendering of a final constructionlocation permit. This fails to take into account the fact thata myriad of important decisions happen along the way tothe final decision. The instant case clearly illustrates this.For example, the EIA conducted in the first stage and theMinistry’s exception in the second are junctures where thepossibility of judicial review would at least prove helpful.Each of these steps informs decisions made in the next.Thus, if citizen participants and other interested parties




observe a flaw in reasoning or law by the government, thecourts can be used to correct such a mistake. Restrained byappropriate standards of review, this potential involvementof judicial scrutiny at essential stages would increaseoverall efficiency and ensure that decisions are groundedin law and truly mirror the public interest.

Contacts Participants in proceedings Miroslav PatrikChildren of the Earth Cejl 48/50 60200 Brno Czech RepublicTel: +42-05-452-103-93 E-mail: [email protected]

Author of case studyPavel DouchaEnvironmental Law ServiceKostnicka 1324 39001 TaborTel: +36-1-256-662Fax: +36-1-254-866 E-mail: [email protected]

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Defence of National Park CaseIn the Tbilisi Regional Court, hearings of administrative

cases take too long (sometimes more than a year) becausejudges are overloaded. This court has one appellate courtchamber with only six judges. There are no regulations tospeed up this procedure. Other obstacles include legalexpenses and standing barriers.



Key issues

• Temporary stays

• Standing (sufficient interest)

• Financial and other barriers

Case study detailsCited case name: National Park Without Land

Parties involved Plaintiff: Emzar Chachanidze, chairman of the activistgroupDefendant: The State Committee of Georgia for Land Useand ProtectionDefendant’s representation: Legal Society AssociationThird-party intervenor: WWF Georgia

Background facts In 1995, the Cabinet of Georgia issued Bill 447

concerning the creation of Borjomi-Kharagauli NationalPark. The World Wildlife Fund (WWF) was involved in the

process of creating the park. According to an agreementbetween the governments of Georgia and Germany, thecreation of the national park was to support employmentand improve the social security of the residents of theBorjomi-Kharagauli region.

On January 12, 2000, the Local Authority (Gamgeoba) ofthe Kharagauli District issued a notice concerning the allo-cation of land to the national park. On July 5, 2000, the StateCommittee of Georgia for Land Use and Protection issued anadministrative act approving the local authority’s notice anddetermining the procedures of the land allocation.

Emzar Chachanidze organised a meeting of farmersfrom local villages and told them that the creation of anational park would limit their rights to logging andhunting, as well as their traditional use of grasslands. Mostof the arguments of Chachanidze were misinterpretationsof the aims of the National Park Project. The farmers organ-ised into a group of activists with Chachanidze as chairmanand began a campaign against the park. (A big part of thelocal population of Kharagauli District supported thecreation of the national park).

Procedural history On August 2, 2000, Chachanidze challenged the

administrative act of the State Committee of Georgia forLand Use and Protection in the Tbilisi Regional Court. Theplaintiff tried to prove that the administrative act on alloca-tion of land for the national park violated the rights of thelocal population and that representatives of local villageshad not been involved sufficiently in the decision-makingprocess by the State Committee of Georgia for Land Useand Protection. He asked the court to abolish the act onallocation of land to the national park.

The Tbilisi Regional Court transferred the suit to theKrtsanisi-Mtatsminda District Court.

To prove his sufficient interest in the case, the plaintiffused the following arguments:


Georgia Case 1

• Because of the act on allocation of land for the nation-al park, herders were not able to use traditional grass-lands and the resident citizens could not use the foreststo cut firewood.

• The Kharagauli District is a high mountainous regionand, according to the Constitution, the state has to pro-vide maximum social support to the population of highmountainous villages.

• The state is limiting the population’s rights.Consequently, the administrative act violates the legalrights of citizens and has to be abolished.

The judge found the plaintiff’s arguments to be accept-able and based his decision on them. On March 30, 2001,the Krtsanisi-Mtatsminda District Court pronounced theabolishment of the administrative act on the allocation ofland to the national park.

The Legal Society Association (LSA) was requested bythe WWF to help the State Committee of Georgia on LandUse and Protection to file an appeal against the decisionof the Krtsanisi-Mtatsminda District Court. LSA was notentitled to appeal the court decision as an NGO becauseit was not a party involved in the case. LSA receivedpower of attorney from the chairman of the StateCommittee of Georgia for Land Use and Protection (thechairman of this committee is a state minister of Georgia,Mr. G. Arsenishvili).

Neither the State Committee of Georgia for Land Useand Protection nor the Legal Society Association hadfunding for this case. LSA provided free legal support to theland-use committee, taking an appeal to the TbilisiRegional Court on May 18, 2001, in hopes of reversing theKrtsanisi-Mtatsminda District Court decision ordering theadministrative act to be abolished.

Standard on appealTo reverse the Krtsanisi-Mtatsminda District Court deci-

sion, according to the Procedural Code, LSA had to proveon appeal that:

• the plaintiff did not have a sufficient interest in thiscase; and/or

• the court had inadequate legal support for its decision,therefore the decision was illegal and groundless.

LSA intended to argue the following on appeal.

StandingAccording to the Administrative Procedural Code of

Georgia (article 22), an administrative act can be appealedin court only when this act has an impact on the personallegal rights of the plaintiff. Thus, the plaintiff has to provehis sufficient interest in the case.

In court, the plaintiff claimed to be the chairman of theactivist group of the local community, but he had no power

of attorney from them. Consequently, he was representingonly his personal interests. The plaintiff resided in theKharagauli District, but he was not a herder and the deci-sion did not impact his rights. Furthermore, reasonable useof traditional grasslands and limited cutting of firewood forthe local population in the territory of the national park(according to official statistics, these limits were more thanenough for the resident farmers) were to be allowed. Theplaintiff never applied to the park administration forpermission to cut firewood and therefore he was neverrefused. The plaintiff’s personal rights were thus notviolated by this act, and he did not have a sufficientpersonal interest.

Inadequate legal grounds for decisionAlternatively, LSA could prove that the District Court had

inadequate legal support for its decision and, accordingly,the decision was illegal and groundless. As the legal associ-ation asserted in its appeal, Georgia has a special law aboutsocial economic and cultural development of high moun-tainous regions. This law lists all such regions in Georgia,and the Kharagauli District is not among them. So theKharagauli District is not a high mountainous district and thejudge erred when he based his decision on this argument.

FeesCourt fees for the appeal were not substantial and the

state committee paid them in advance. LSA could havehad a problem if the court fees were more because thestate committee did not have its own budget. The plaintiffdid not have this problem because, according to article9(4) of the Administrative Procedural Code of Georgia,failure to pay court fees by a physical person does nothamper the consideration and decision of a case.According to article 47 of the Civil Procedural Code ofGeorgia, a judge can exempt a citizen from court fees.NGOs, public agencies and other organisations do nothave such a privilege and have to pay court fees. Advancepayment is usually required.

The Tbilisi Regional Court had not yet held hearings onthis case as of August 2002.

Final outcomeIn August 2002, the case was before the Tbilisi Regional

Court awaiting a hearing of the appeal. The Krtsanisi-Mtatsminda Court decision was temporarily stayed pendingthe Tbilisi Regional Court’s decision on the appeal.

Related actions and campaignsNone

Access to justice techniques This case is quite interesting as it involves access to

justice techniques used by both parties in the suit. For its




part, LSA was trying to prove that the plaintiff did not havesufficient interest in this case (despite the fact that he wasexercising participatory rights in the name of “indigenous”interests) and that the court was wrong in its finding thatthe Kharagauli district was a special mountainous region.

The agency appealing the lower court decision couldsucceed in convincing the higher court to grant a stay of thelower court’s judgement pending resolution of the appeal.

Case study analysisThe case study reflects a situation in which the greater

long-term public interest is subsumed by the short-term(and possibly unfounded) interests of the local community.The main problem of the local population in theKharagauli District concerning the establishment of theBorjomi-Kharagauli National Park, practically speaking,was the desire to have the right to use natural resourcesillegally (illegal harvesting of timber, hunting, use ofpastures). Establishment and clear demarcation of theboundaries of the national park would prevent theseactions of the local population. The existing economic andsocial conditions in Kharagauli District (as well as in otherparts of Georgia) promote this kind of illegal demand.


“This case is the most unusual case in my practice.Usually, I support citizens and local communitiesagainst public agencies, but in this situation I support-ed a public agency to protect a national park againstmembers of the public. Access to justice in environ-mental matters may have its reverse side. The right touse the natural environment is a constitutional humanright in Georgia along with the right to live in a healthyenvironment. Actually, in this case each party coulduse access to justice methods intended for environ-mental cases by the environmental and procedural leg-islation of Georgia. I think that in this situation, theinterests of the national park were more important forthe environment than the interests of part of the localcommunity (farmers from the bordering villages).Probably if the local community had more accurateinformation about the creation and management of thenational park, the national park would not have hadproblems with them.”

— Merab Barbakadze

“The WWF Georgia Country Office is directly involvedin implementation of the German-Georgian ‘Borjomi-Kharagauli Open Programme,’ which is run by theGerman Bank KfW and which in turn is based on theDecember 21, 1998, framework agreement betweenthe governments of Georgia and the Federal Republicof Germany on financial cooperation concerningBorjomi-Kharagauli National Park. Within this frame-work, the WWF Georgia Country Office is carrying outthe responsibilities of the implementing unit. One ofthe objectives of the German-Georgian ‘Borjomi-Kharagauli Open Programme’ is to set the boundariesof the national park. That is why the WWF GeorgiaCountry Office, in terms of the case study ‘NationalPark Without Land,’ could be considered both an inter-ested and affected party.”

— Nugzar Zazanashvili (representing the WWFGeorgia Country Office as an interested and affected

party)

Contacts

Merab Barbakadze, Executive DirectorLegal Society AssociationFlat 54, Building-32, 0138, Varketili-3 Tbilisi GeorgiaTel: +995-32-797-279Mobile: +995-99-508-514Email. [email protected]/lsa

Nugzar Zazanashvili, Deputy Director,Conservation Projects CoordinatorWWF Country Office GeorgiaM. Aleksidze St. 11 380093 Tbilisi GeorgiaTel: +995-32-330-154/155/190Email: [email protected]

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Vake Park CaseA citizen started a successful challenge of a permit for

construction of a hotel in a protected park that was grantedwithout informing the public or giving an opportunity forparticipation, but withdrew before final success as a resultof harassment and intimidation.


• Articles 9(1), (2), (3) and (5)

Key issues


• NGO standing

• Financial barriers


• Harrassment and intimidation

Case study detailsCited case name: Vake Park Case

Parties involved Plaintiff: George G.Plaintiff’s representation: Legal Society AssociationDefendants: The Tbilisi Local Authority and Lazi XXI Ltd.Third-party intervenor: Department of MonumentProtection of the Ministry of Culture

Background factsOne of the acute environmental problems facing

Georgia in recent years is increased construction in parks,

gardens and their surroundings, despite a law that banssuch activities. Lazi XXI Ltd. received permission todevelop a part of Vake Park in 1996 by constructing a 16-storey hotel with supporting facilities and, in 1998,obtained the property deed. Permission to begin construc-tion of the hotel was issued in November 1999, withoutproviding information to the general public and citizens(or NGOs), giving them no chance to get involved in thedecision-making process. The cost of the project was esti-mated at USD 15 million, though it was never discoveredhow Lazi XXI Ltd. intended to finance the project. InDecember 1999, the citizens of Tbilisi discovered thesefacts when construction began on the territory of the oldVake Park. Public protests did not resolve the situation.

Procedural history The Legal Society Association (LSA) launched an inde-

pendent investigation which determined that, on the basisof the Law on Cultural Heritage, Vake Park was part ofGeorgia’s cultural heritage. All activities that could nega-tively affect its condition should be banned in Vake Parkand its surroundings. Furthermore, privatisation of parts ofthe cultural heritage of Georgia could be a violation ofGeorgian law, as well as violating certain rights defined bythe Georgian Constitution, article 37(3, 5),14 and the Law ofGeorgia on Environmental Protection, article 6(a, b, c, f).15

Under Chapter XLIV of the Civil Procedure Code(1999), only citizens were entitled to sue regarding admin-istrative acts, and only in cases where the act directlyaffected their legal rights. Thus, NGOs did not havestanding to challenge administrative acts, and it was there-fore necessary to find a Vake District resident that could berecognised as a plaintiff with standing. A person (GeorgeG.) was proposed by Friends of the Earth Georgia.

LSA submitted the suit just before the Civil ProceduralCode was superseded on January 1, 2000. The suit wassubmitted to the Regional Court of Tbilisi, but after thecoming into force of the new General Administrative


Georgia Case 2

Code and Administrative Procedural Code on January 1,2000, the case was transferred to the District Court ofKrtsanisi-Mtatsminda.

During the first preparatory court hearing, the problemof time limitation in which to bring the action wasresolved. LSA proved that the plaintiff had no informationabout the issuance of the administrative act (the permitswere never published), and had no chance to be involvedin the decision-making process, a violation of his legalrights. According to article 361(2), chapter XLIV of the CivilProcedural Code of Georgia, time limitations for citizens’rights to appeal in court must be counted from the daywhen a citizen is informed about his right to appeal tocourt. Additionally, the citizen must be given the name andaddress of this court. Thus, the limitation of action shouldhave been counted from the day the plaintiff received anofficial copy of the permits from the administrative agencyin response to his letter of inquiry. The judge ruled infavour of the plaintiff on this point.

On the basis of the Procedural Legislation of 1999, theplaintiff had the right to ask the court to issue a permanentinjunction invalidating the permit for reconstruction.However, if the plaintiff lost the case, the developer wouldrequire compensation for damages from the plaintiff.Therefore, the plaintiff would have chosen not to seek apermanent injunction. However, under the newAdministrative Procedural Code, article 29, challenging anadministrative act results in an automatic injunctionsuspending the act. This was applied in the present case.

Final outcomeThe judicial proceeding had great resonance with the

general public. Due to the consequent media investiga-tions and public reaction against the hotel construction, thelocal authority took effective action. The permit forconstruction was withdrawn and the senior architect (thepublic servant who issued the permit) of Tbilisi wasdismissed. However, LSA wanted to overturn the privatisa-tion act as well.

Success seemed to be at hand when an unforeseencomplication developed. The plaintiff withdrew the suit,explaining that unknown persons had terrorised his familyand demanded that he back down. The plaintiff refused topursue the suit. Under article 22 of the new AdministrativeProcedural Code, any person (including an NGO) can chal-lenge any administrative act, provided that it can prove asufficient interest. That was almost impossible in this case,and LSA could therefore not initiate a new suit as an NGO.LSA hoped to find a new person to serve as a plaintiff withstanding. However, the problem with time limitationremained.

Case study analysisThe case was remarkable in that the rules for standing

changed in the middle of the case. In 1999, NGOs were not

entitled to sue regarding administrative acts. UnderChapter XLIV of the old Civil Procedural Code, only citi-zens were entitled to sue regarding an administrative act,and only when the administrative act violated the citizen’slegal rights. The plaintiff had to prove a sufficient interestin the case and that his rights had been violated. The plain-tiff had to pay court costs and overcome the barrier of thetime limitation for bringing an action. The court held thatthe public agency did not inform the plaintiff about hisright to appeal the administrative acts to court.

NGOs also have problems with court costs. Accordingto article 9(4) of the Administrative Procedural Code ofGeorgia, failure to pay court costs by a physical persondoes not hamper the consideration and decision of a case.NGOs have no such privilege and have to pay court costs(usually advance payment is required). LSA did not havefunding for this case. It provided free legal service andFriends of the Earth Georgia paid the court costs.

Intimidation and harrassment of the plaintiff were unfor-tunately successful in this case, and no action was taken toprevent this from happening or to punish the perpetrators.

The standing of the NGO to challenge the administra-tive acts in its own right, under the new AdministrativeProcedural Code of Georgia, has been greatly enhancedby the coming into force of the Aarhus Convention, sincethe NGO would not have to prove a sufficient interest tohave standing.


“We achieved some results in this case, includinghaving the permit for construction withdrawn andending construction activity. But we were notcompletely successful because the plaintiff droppedhis suit. This outcome might never have happened ifunder our legislation, NGOs were entitled to sueregarding administrative acts without proof of suffi-cient interest. Once the Aarhus Convention isenforced, environmental NGOs will not have this kindof access to justice problem, because based on article9 of the Aarhus Convention we will no longer need toprove sufficient interest.”

— Merab Barbakadze, lawyer from the Legal SocietyAssociation.

“Vake Park is part of the cultural and environmentalheritage of Georgia. In this regard, the value of thelawsuit against construction of the hotel cannot beunderestimated. Despite the fact that the court neverissued a final decision, the case put pressure on localauthorities to take effective action against violationsof law. The problem of finding a plaintiff withstanding is the main issue for Georgian environmentalNGOs. Too often we have been unable to initiate a




court case because we cannot prove a sufficient

interest in the case. Finding citizens to serve as plain-

tiffs with standing creates lots of problems for them

(because of problems with the community or black-

mailing) as well as for us, as we are never sure how

far he or she will go. With the Aarhus Convention

having entered into force on October 31, 2001, the

problem will hopefully be solved.”

—Manana Kochladze

Contacts

Merab Barbakadze, Executive directorLegal Society Association

Flat 54, Building-32, 0138, Varketili-3

Tbilisi

Georgia

Tel: +995-32-797-279

Mobile: +995-99-508-514

E-mail: [email protected]

Website: www.interconnection.org/lsa

Manana Kochladze19 Ateni str

380079 Tbilisi

Georgia

Tel: +995-32-291-006

Fax: +995-32-291-001


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Waste Fuel Plant CaseThe court’s treatment of a local resident’s suit seeking

to enjoin the development of a waste-fuelled facility illus-trates how the advantage of broad standing inenvironmental suits can be negated by narrowly construedinterpretations of when injunctive relief should be granted.


• Article 9(4)

Key issues

• Administrative and judicial review procedure


• Duration of the proceedings

• Financial barriers (“loser pays” principle and the con-sequence of court costs to individual litigants)

Case study detailsCited case name: Interim injunctive relief Claim:Mannheim Higher Administrative Court (VGH), rulingdated June 29, 1994 (File No 10 S 2510/93), NeueZeitschrift fur Verwaltungsrecht <NVwZ> 1995, 292 ff.

Legal Action: Mannheim Higher Administrative Court,judgement dated June 28, 1995 (File No 10 S 2509/93),Neue Zeitschrift fur Verwaltungsrecht <NVwZ> 1996, 297 ff.

Parties involvedPlaintiffs: Seven individuals living in Ulm and Neu-Ulm(“residents”) within a radius of 1.5 to 3.5 kilometres fromthe planned location of a waste-fuelled power plant

Defendants: The State of Baden-WurttembergThird-party intervenor: Zweckverband, an association ofregional and local authorities that applied for the develop-ment permit and operated the waste-fuelled power plant

Background facts On February 28, 1992, an association of regional and

local authorities (Zweckverband) belonging to the Alb-Donau District and the Municipality of Ulm submitted anapplication to the Regional Administration (Regierung-sprasidium) for a development permit for a waste-fuelledpower plant. The plant in question was a stationary instal-lation for the combustion of waste not subject tocompulsory monitoring. The plant was to be built in anindustrial district of Ulm and would have had an annualtotal capacity of 111,000 tonnes.

Following the usual procedure for official announce-ments, the application and the planning documents werelaid out for public inspection in the municipalities of Ulmand Neu-Ulm on May 29, 1992 and in the neighbouringcommunities of Blaustein, Erbach and Illerkirchberg onJune 9-10, 1992. Residents then filed objections that wereincluded on the agenda of public hearings on the matterand deliberated over during the hearing in Ulm fromNovember 26 to December 5. Importantly, relevant proce-dural provisions stated that only objections, duly filedwithin the required period in the administrative procedure,could subsequently be asserted in court. As a general prin-ciple, any objections not filed within the required periodcould no longer be brought before the administrativecourts (preclusion).

On September 22, 1993, the Regional Administrationapproved the permit for the waste-fuelled power plant,while simultaneously dismissing the objections that hadbeen filed against the project. Furthermore, the administra-tion declared the permit to be immediately enforceable.Such a decision — declaring an administrative act to beimmediately enforceable — was an exception to normal


Germany Case 1

proceedings. Generally, actions and other appeals againstadministrative procedures, such as those entered by resi-dents, served to halt enforcement of an administrativedecision until found to be lawful by a court.

Hence, in this case, the recipient of the permit was ableto begin construction of the plant despite residents filinglegal objections.

Procedural history On October 21, 1993, the plaintiffs brought an action to

annul the permit before the Mannheim HigherAdministrative Court. In addition, residents also filed anapplication to reverse the “immediately enforceable” decla-ration and halt development of the site pending finaljudgement, pursuant to §80a paragraph 3 and § 80 paragraph5 of the Code of Administrative Procedure [VwGO]).16

Subject of appealResidents asserted that the development permit

infringed upon their procedural and substantive rights,particularly their right to physical safety, and contendedthat the air pollutants emitted by the plant posed a threat totheir health. In the proceedings for interim injunctive relief,the plaintiffs also asserted that there was no prevailinginterest in immediately enforcing the development permit,since the waste-fuelled power plant was unlawful.

Final outcome Neither the application for interim injunctive relief nor

the action itself was successful. In addition, no appealswere lodged in this instance. Subject to VwGO §132 and133, appeals against the judgements of the HigherAdministrative Court are possible only via recourse to theFederal Administrative Court. Unlike resolutions of theadministrative court, no objections may be filed againstresolutions of the Higher Administrative Court in interiminjunctive relief proceedings (VwGO §152 paragraph 1).


Access to justice techniques When contesting a development permit, a party does

not have to appeal first to those authorities that haverendered a permit decree. Thus, as in this instance, a partymay directly seek judicial review by the court of suchdecree. Additionally, in this case, residents also soughtinjunctive relief — suspending the declaration of imme-diate enforceability and halting development of the facility.

Case study analysisIn this case, the following three issues, generally arising

in environment-related actions by individuals or associa-

tions, are of particular relevance:17

• whether the legal standing or right to apply is limited tothe asserted infringements of subjective rights;

• what the scope is of judicial control of substantial law(control breadth) within the context of examining justi-fication; and

• what the intensity is of judicial control of substantiallaw — or “control depth” — within the context ofexamining justification.

The case study outlined here illustrates the interactionsbetween the right to action, the scope of control and thedensity of control. Whereas the right to legal action, whichis often problematic in environmental cases, does nothinder access in this concrete case, the scope of examina-tion is confined to those rules that serve to protect thirdparties. On the other hand, as is often the case in environ-mental actions, the density of control is very high.

Moreover, the case is also instructive because, in addi-tion to the action for annulment, it also involves interiminjunctive relief proceedings. Even for this provisionalruling, the court undertook a summary examination witha high density of control. If the contested administrativeact (e.g. the development permit of a plant) was found tobe unlawful in a summary examination of this kind,within the context of interim injunctive relief, the courtcould have decreed that the administrative act should nothave been enforced until a final decision on the mainissue had been reached.

Standing German law primarily grants access to justice to those

individuals who are able to assert that their individualrights (e.g. health, property, etc.) will be violated by anadministrative decision. Typically, if the administrativedecision concerns granting planning permission for aninstallation, all persons affected by the potential harmfuleffects of the plant will have such a right to legal action. Forthis reason, the right of action, as a general rule, does notpose a serious hurdle for access to justice for this group ofpotentially affected individuals.

In this instance, the right of action was found to bevalid, both for the proceedings for interim injunctiverelief,and for proceedings pertaining to the main issue. Ineach case, the plaintiffs contended that they were exposedto health risks as a result of air pollutants that would beemitted by the plant. In this respect, they referred to §8paragraph 3, sentence 2, no. 3 of the Waste Avoidance andManagement Act (Abfallgesetz) and §5 paragraph 1, no. 1of the Federal Emission Control Act (BImSchG), whichstate that plants must be constructed in such a way that noharmful environmental impacts or other risks to thegeneral public and neighbourhood are incurred. Theseprovisions are recognised to protect third parties, since



they serve to avoid risks and since the “neighbourhood” isexplicitly cited as the protected subject.

Given this, it was sufficient for the plaintiffs to assert thatthe plant posed a risk to their health and, in turn, substan-tiate their claims. Such an infringement of rights appearedplausible, since the plaintiffs resided within the area ofimpact of the plant (at a distance of 1.5 to 3.5 kilometres).Against this background, the Higher Administrative Courtruled by a narrow majority that the infringement of theplaintiffs’ rights due to the possible health risks “could notbe excluded from every legal angle.”

Injunctive reliefIn the context of reversing an order of “immediate

enforceability” as a means of interim injunctive relief,German courts generally examine two factors:

• The order for immediate enforceability must complywith the formal requirements (i.e. it must be madeexplicitly, in writing, and with adequate justification).

• From a substantive point of view, there must be a par-ticular (public or private) interest in enforcement thatoutweighs the private interests of the possible affectedparties (VwGO §80a paragraph 3 and §80 paragraph 5).

Focusing on the latter, the interest of the affectedparties in suspending immediate enforcement generallyoutweighs enforcement of the decree if the underlyingadministrative decision is unlawful. Consequently, thesuccess of the party seeking such injunctive relief turns onthe party’s likelihood of success on the merits of its claim.In this, the action is likely to be successful only if the courtfinds that the rights of the plaintiff have been infringed in amanner likely to lead to the annulment of the administra-tive decision. (VwGO §113 paragraph 1, sentence 1).

In this instance, the residents’ application for injunctiverelief was denied because the court found that the “inter-ests” of the association of local and regional authorities(Zweckverband) outweighed the interests of the publicrepresented by the nearby residents. In short, while findingthat the relevant environmental statutes illustrated thepossibility that environmental rights would be infringedand thus created a right of action, the development permitwould not likely infringe upon those rights.

In making this determination, the court examined therelevant legal aspects at length, but confined its assertionof the facts to a rough examination. More specifically,regarding the scope of examination, the court confineditself only to the consideration of those provisionsprotecting third parties, failing to construe broadly poten-tial infringement of residents’ (i.e. the public) interests byallowing development.

First, the court examined the existence of an effectivestatutory basis for the development permit and whetherthere were any procedural errors committed in issuing theorder. Tellingly, procedural provisions designed to protect

the interests of the general public, as opposed to thirdparties, were disregarded. Moreover, the court held thatany procedural errors that may have been committed wereimmaterial and would not have led to an infringement ofthe plaintiffs’ subjective rights had the intended purpose ofthe violated procedural provision been achieved throughother means.

When examining the substantive lawfulness of thedevelopment permit, the court initially ascertainedwhether the provision in question was designed to protecta third party. It then conducted an extensive and detailedinvestigation into whether this provision to protect a thirdparty had been violated, as a result of which the rights ofthe plaintiffs had been infringed. In this respect, the courtconsulted expert reports (some of which had beencommissioned by the court itself, and others by the parties)and scrutinised the statements they contained, forexample, with regard to measurement techniques anddispersal forecasts.

Duration of the proceedingsGiven the complexity of the matter and the size of the

approved plant, the duration of the proceedings would notappear to be unusual, especially since the court wasrequired to obtain and evaluate a large number of expertreports. Eight months elapsed between the submission ofthe applications for interim injunctive relief and the court’sdecision, and another 20 months elapsed between theaction being brought and the judgement.

It should be noted, however, that in most environ-mental cases, where the Higher Administrative Court doesnot have jurisdiction in the first instance, a LowerAdministrative Court must first be consulted. Furthermore,the duration of the proceedings would have been consid-erably longer had there been an appeal to the FederalAdministrative Court.

Costs of the proceedingsUnder German law, the costs of the proceedings are

borne by the unsuccessful party (VwGO §154 paragraph 1),or if both parties are partially successful, the costs shall beshared accordingly (VwGO §159). If, however, there aremultiple unsuccessful parties, court costs are generallydivided equally, unless a different apportionment of costsis indicated by the particular circumstances (VwGO §159).

The costs of the proceedings are calculated accordingto the value of the claim in dispute. The importance of thematter is decisive when determining this value, and isdetermined at the discretion of the court18 (§13 of the CourtCosts Act [GKG]). Proceedings relating to interim injunctiverelief are independent from the proceedings pertaining tothe main issue. As a general rule, for proceedings relatingto interim injunctive relief in accordance with §20 para-graph 3 of the Court Costs Act (GKG), the amount indispute is calculated as a fraction of the value of theproceedings pertaining to the main issue (§20 paragraph 3


G E R M A N Y C A S E 1

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of the Court Costs Act [GKG]). While not applicable in this case, in the event of an

appeal to the Federal Administrative Court, higher courtcosts and legal fees would have been incurred. Additionalcosts are also generated if an appeal before the adminis-trative authorities is implemented prior to bringing action.

In the instant case, the amount in dispute was set atDEM 70,000. Consequently, the cost was DEM 3,100 forthe proceedings pertaining to the main issue and theproceedings relating to interim injunctive relief.19 Inaddition to the court costs for interim injunctive reliefand the action for annulment, lawyers’ fees were alsoincurred, plus any compensation for witnesses andexperts, where applicable.

As evident in this case, the costs of complex environ-mental cases, particularly those involving large-scaleprojects, are often a de facto obstacle to access to justice.Given this and in light of German law, legal aid assistanceprovides a possible solution. A general requirement for thegranting of legal aid is that the lawsuit must have a reason-able prospect of success and must not be deemed wanton

(VwGO §166 and §114 of the Code of Civil Procedure

[ZPO]). Furthermore, the parties must be needy. In the case

of natural persons, this is determined according to their

income and available assets (ZPO §114 and §115). Finally,

domestic legal persons or organisations with the capacity

of being party to legal proceedings may apply for legal aid

if neither they nor parties financially involved in the

lawsuit are able to bear the costs, and failure to pursue or

defend the matter in court would contravene the public

interest (ZPO §116, sentence 1, no. 2).

Contact

Klaus-Peter Dolde, AttorneyGerling-Haus

Heilbronner Strasse 156

70191 Stuttgart

Germany

Tel: +49-0711-601-701/0

134

Experts’ Documents CaseA recognised nature conservation association partici-

pating in a development permit procedure following theamendment of planning documents, whose request foraccess to “relevant expert reports” was not fulfilled, soughtto annul the issued development permit on the groundsthat its participatory rights were infringed and such infringe-ment could not be remedied in a supplementary hearing.



Key issues

• Review of denial of access to information


Case study detailsCited case name: Development permit section 2.5:Hearing relating to the construction of a train track exten-sion between Erfurt and Leipzig/Halle

Ruling by the Federal Administrative Court: DatedNovember 12, 1997 (File No 11 A 49/96), FederalAdministrative Court ruling (BVerwGE) 105, 348 ff.; NeueZeitscrhift fur Verwaltungsrecht (NVwZ) 1998, 395 ff.

Parties involvedPlaintiff: NABU Landesverband Sachsen-Anhalt, a recog-nised nature conservation association under federal law(§29 paragraph 2 of the Federal Nature Conservation Act[BNatSchG]).Defendant: The Federal Republic of Germany, repre-sented by the Federal Railways Authority (FRA)

In this case, the nature conservation associationclaimed the infringement of its own rights, specifically itsright to participate in development permit procedures (§29of the Federal Nature Conservation Act [BNatSchG]). Assuch, this was not a legal action taken by an association toassert substantive environmental interests, but a so-calledaltruistic legal action by an association.20

Background factsOn May 11, 1995, the regional administration in Halle

initiated plans to conduct a hearing to discuss the possibleissuance of a development permit for the construction of atrain track extension from Erfurt to Leipzig/Halle. In a letterdated June 19, 1995, the regional administration invitedNABU to participate in the proceedings and sent the rele-vant planning documents indicating the project’s potentialeffects on nature conservation interests to the organisation.

Subsequently, NABU raised a number of objections tothe development permit and requested access to otherdocuments in a letter dated August 14, 1995.

At the public hearing on November 8, 1995, NABUonce again explicitly requested access to various docu-ments, including, in particular, an expert report by theplanning office “O” referring to a survey of naturalfeatures of the surrounding countryside. NABU also reiter-ated its objections to the project that were stated in theAugust 14 letter.

A development permit was granted on June 25, 1996.In it, the Federal Railways Authority rejected NABU’sapplication to view the files. The development permit alsostated that the project planners, in order to counteract theobjections lodged, had made amendments to the planningdocuments laid out for public inspection. The amend-ments concern, inter alia, the accompanying landscapemanagement plans, including replacing 18 of a total 100pages in part 1 of the accompanying landscape manage-ment plan, 169 of a total 214 pages in part 2, and 49 of atotal 68 pages in part 3, annex E. The total land affected by


Germany Case 2

the landscape management measures was reduced from1,036,5471 to 1,032,6922 hectares. In all, the amendmentsaffected more than 50 percent of the total land area.Finally, rather than completely transforming arable landinto extensive grassland, under the amendments, part ofthe arable land was now to be placed under groundwaterprotection-oriented management.

According to the development permit, the amendedplanning documents were sent to the relevant authoritiesand private individuals who would be affected by theamendments, either for the first time or more severely thanbefore. The document indicated that opinions had beenrequested and that the opinions received had beenaddressed. No new date for public discussion was setaccording to the development permit.

Procedural historyNABU brought legal action against the development

permit at the Federal Administrative Court (the court of firstinstance according to §3 paragraph 1 of the Act onAcceleration of Traffic Infrastructure Planning [VerkPBG])on September 4, 1996. In the complaint, NABU sought toannul the development permit of June 26, 1996 and,secondly, asserted that the development permit wasunlawful and thus not enforceable.21

NABU based their claims on the contention that thedevelopment permit was unlawful because it infringed itsparticipatory rights in accordance with §29 of the FederalNature Conservation Act (BnatSchG). In particular, §29 ofthe Federal Nature Conservation Act (BnatSchG) statesthat recognised nature conservation associations must begiven an opportunity to express their views and haveaccess to the relevant expert reports in developmentpermit procedures for projects which involve impairmentof nature and landscapes.

In support of its claim, NABU argued that the defen-dant failed to notify the plaintiff of the amendments to theaccompanying landscape management plans and failed togive the plaintiff an opportunity to voice its opinions, eventhough the major and qualitative amendments to the plan-ning documents would have necessitated its renewedparticipation. In particular, key parts of the accompanyinglandscape management plan had been altered, with impli-cations for other elements of the development permit. Themodified plan’s value to nature conservation was substan-tially inferior to the original version, it claimed, since itscompensatory effects were much lower. The plaintifffurther alleged that a number of compensatory andreplacement measures had been downgraded to such anextent that there was no longer any significant beneficialeffect for the ecosystem. The plaintiff would have rejectedthese subsequent amendments had it been aware of themand given the opportunity to do so.

It was further alleged that NABU had not been grantedaccess to all relevant expert reports as requested in its

appeal dated August 14, 1995. All the documents in ques-tion, the plaintiff contended, were “relevant expert reports”as per the definition of §29 paragraph 1, sentence 1 of theFederal Nature Conservation Act [BNatSchG], because theywere important for an assessment of nature and landscapeconservation. Had NABU been aware of the required docu-ments, it argued, it would have extended its opinion toinclude other aspects addressed in the documents.

NABU contended that its lack of participation could notbe remedied by a supplement to the development permitor supplementary proceedings. Therefore, the permit wasunlawful, the group argued.

Final outcome The plaintiff’s main charge — that the development

permit should be annuled due to defects in the proceedings— was rejected. However, the subsidiary charge — that thedevelopment permit was unlawful and not enforceable dueto the procedural infringement — was affirmed.

According to the court, denial of NABU’s participatoryrights was a sufficient infraction to render the develop-ment order illegal and not enforceable. In this, the courtruled that NABU’s participatory rights had been infringedin two respects:

1) The railway authority infringed upon NABU’sparticipatory rights by denying it a further opportunity tovoice its opinions once the development permits hadbeen amended, despite being obliged to do so (§29 para-graph 1, sentence 1, no. 4 of the Federal NatureConservation Act [BNatSchG]). As a general principle, asingle hearing would suffice to accommodate a natureconservation association’s participatory rights, sincenature conservation associations are not “general compan-ions” of the development permit procedure. Nevertheless,the participatory rights of nature conservation associationsare not mere formalities. Instead, there is a need for a“substantial” hearing. On the basis of this, it may becomenecessary to give nature conservation associations asecond opportunity to voice their opinions, despitehaving already been duly consulted.

Whether a second opportunity to offer an opinion isrequired turns on the overall purpose of a particular party’sparticipation. In matters such as the instant case, natureconservation associations serve a valuable role bysupporting authorities with expert knowledge and byproviding a check ensuring that nature and landscapeconservation interests are considered in proceedings.Consequently, this “participation of expert knowledge”necessitates renewed participation if the permit itself isaltered in a manner that affects nature conservation inter-ests.22 Moreover, a second hearing is required if the natureconservation authorities are to be given another opportu-nity to voice their opinions because the modifieddevelopment permit affects their scope of action, either forthe first time, or to a greater extent.




In this case, the court felt that these requirements forthe repeated participation of the plaintiff had been met.Additional nature conservation issues were raised as aresult of the amendments to the envisaged land use. Inquantitative terms, the changes affected about 50 percentof the land area. In qualitative terms, the changes affectedthe overall concept of the compensatory measures.Whereas the desired intent was originally to dispenselargely with agriculture in favour of grassland, under theamended development permits formerly arable land wouldcontinue to be used to an even greater extent. In the faceof such far-reaching amendments, the defendant wouldnot be able to determine, without once again consultingthe plaintiff, whether the altered development permit stillcomplied with nature conservation regulations. Moreover,the defendant itself evidently assumed that the interests ofthird parties and other authorities would be more severelyaffected by the amended development permits, becausecontrary to its comments in the development permit, it didin fact consult the responsible nature conservation author-ities once again. Consequently, it would also have beenobliged to consult the plaintiff once again, and was wrongnot to do so.

(2) The court also ruled that the railway authorityinfringed upon NABU’s participatory rights by failing togrant the plaintiffs access to the expert report by office “O”(§29 paragraph 1, no. 4 of the Federal Nature ConservationAct [BNatSchG]). Although §29 paragraph 1 of the FederalNature Conservation Act (BNatSchG) does not grantcomprehensive rights of free access to all the files in thedevelopment permit procedure, it does grant the specialadditional right of access to “relevant expert reports.” Thisnot only includes reports by experts formally consultedunder the Law on Administrative Procedures (VwVfG), butalso expert statements by third parties, albeit only to theextent that such reports refer to “relevant” issues.

In this case, “relevant” reports are those that “referdirectly to nature conservation legislation or landscapemanagement interests, but not to other issues on which thenature conservation associations would not be expected togive an opinion.” Accordingly, the Federal RailwayAuthority should have granted NABU access to the expert

report by the office “O” that referred to a survey of thecorridor of countryside along the new section of track andthus directly addressed conservation matters within thetext of the report.

Related actions and campaignsNone reported

Access to justice techniquesPlaintiffs used the courts to challenge a decision based

on a substantially amended proposal, and in particularattacked the failure of the authorities to include the NGOin new proceedings and to provide necessary expertreports.

Case study analysisThe court’s ruling underscores the importance of incor-

porating rights to consultation within the body ofenvironmental statutes. In this matter, the court needed tofind procedural violations of the Law on AdministrativeProcedures (VwVfG) given that §29 of the Federal NatureConservation Act (BNatSchG), expressly provides a “quali-fied right of consultation” thus taking precedence over anyrelated administrative law provisions. Thus, the effect wasnot merely to annul the order but to make it illegal on itsface. As held by the court, the legislature has “subjectified”the public interest in nature conservation and landscapemanagement in order to facilitate a more widespreadinvolvement in the development permit procedure.

Contact Trial representative of the Plaintiff:

Kruger, AttorneyBaumann, Kruger, Eiding — Attorneys Annastrasse 28 97072 WurzburgTel: +931-354-110Fax: +931-354-1127

137

G E R M A N Y C A S E 2



Windmill CaseA broad right to action directly conveyed by an envi-

ronmental statute allowed a nature conservationassociation to bring suit against developers solely on thebasis of conservation interests and without the need toestablish that individual rights had been infringed upon.


• Article 9(2)

Key issues

• NGO standing

• Judicial review

Case study detailsCited case name: Development permit: PotsdamAdministrative Court, judgement dated August 7, 1997 (FileNo 1 K 3417/95), NuR 1998, 675 ff.

Parties involvedPlaintiff: A recognised nature conservation association(“association”) (§63 paragraph 1 of the BrandenburgNature Conservation Act [BbgNatSchG] in conjunction with§29 paragraph 2 of the Federal Nature Conservation Act[BNatSchG])Plaintiff’s representation: Attorney Jurgen Schindler-ClausnerDefendant: The Ministry for the Environment, NatureConservation and Regional Planning (“Ministry”), theauthority that issued the licence under landscape protec-tion law (§19 paragraph 2 of the Brandenburg NatureConservation Act [BbgNatSchG])

Third-party intervenor: Private investor, seeking toexclude a property for a wind power facility fromprotected conservation area

Background facts A private investor initiated plans to construct and operate

a wind power station in Westhavelland, a conservation areaplaced under temporary protection amid proceedings togrant permanent protection status. Given that permanentprotective status had yet to be conferred, the investor appliedto exempt the site from the conservation area.23

The lower countryside authority forwarded theinvestor’s application to the Ministry for the Environment,Nature Conservation and Regional Planning, stating that inits opinion, the application should be refused. The Ministryalso consulted the regional offices of the recognised natureconservation associations, which likewise rejected theproject at this site.

Despite this, the Ministry approved the project in anadministrative decision dated July 12, 1995. In approvingthe project, the Ministry relied extensively on expertreports submitted by the investor that stated that the riskto birds from a wind power station were minimal. In addi-tion, according to the reports, disfiguration of thelandscape would also be minimal and, though large inscale, the facility would not obstruct views within publicaccess areas of the tract.

The Ministry also based its decision on the assumptionthat the investor’s application for exemption would be inter-preted as a licence and, consequently, would be subject touse limitations in accordance with §19 paragraph 2 of theBrandenburg Nature Conservation Act (BbgNatSchG).

Procedural history The plaintiff brought legal action against the develop-

ment permit of the wind power station at the PotsdamAdministrative Court. The plaintiff asserted, inter alia, that


Germany Case 3

the defendant had failed to satisfy the principle of officialinvestigation, and in particular, had neglected to examinesatisfactorily the impacts of the wind power station on thesite’s function as a feeding, resting and sleeping area fornumerous species of birds.

Final outcome The court deemed that the association had standing to

bring its suit and, subsequently, the association succeededon the merits of its claim. The association’s suit resulted inthe annulment of the Ministry’s administrative decisionapproving the wind power station.

Access to justice techniques The association initiated a judicial review of the

Ministry’s decision. From documents available on the case,it is not possible to deduce whether preliminary proceed-ings were also held. However, it is likely, given that it isgenerally necessary to lodge an appeal for administrativereview (§68ff. of the Code of Administrative Procedure[VwGO]) before bringing a suit for annulment.

Related actions and campaignsNone

Case study analysisThe association’s right of action derived from a provi-

sion under the land law expressly addressing anassociation’s standing rights (§65 of the BrandenburgNature Conservation Act [BbgNatSchG]). Notable withinmost of the Lander, including Brandenburg, is that an asso-ciation has a right to take action not merely upondemonstrating individual harm, but more broadly inconjunction with affected conservation interests. Accord-ingly, a nature conservation association that is recognised inBrandenburg in accordance with §29 of the Federal NatureConservation Act [BNatSchG] may bring legal actions inadministrative courts challenging decisions by the landadministration without having to establish that its individualinterests or rights have been infringed upon.24

More specifically, in order for a recognised associationto bring suit in the absence of demonstrated individualharm, the following elements must be established:

• The association must assert that, as a result of the adop-tion, rejection or omission of an administrative act, theprovisions of the Federal Nature Conservation Act(BNatSchG), the Brandenburg Nature Conservation Act(BbgNatSchg) or other legal provisions adopted on thebasis of these acts have been violated.

• The administrative act or the omission thereof mustinvolve subject matter related to the purposes of the

association. (§63 paragraph 2, no. 1 or 2 of theBrandenburg Nature Conservation Act [BbgNatSchG]or §29 paragraph 1, no. 3 or 4 of the Federal NatureConservation Act).

• The duties and goals of the association as set out in itsarticles of association are affected by the administrativeact or ommission.

• The association has exercised its participatory rights inaccordance with the Federal Nature Conservation Act(BNatSchG) or the Brandenburg Nature ConservationAct (BbgNatSchutzG), or has not been given an oppor-tunity to express its views.

In terms of improved access to justice, this frameworkis ideal for allowing NGOs additional opportunities forchallenging administrative decisions with clear environ-mental and community-wide consequences. In the instantmatter, had the association been required to demonstrateharm to individual rights, it may not have been able tochallenge the Ministry’s decision. Like many decisionswith environmental impacts, the only parties withapparent rights of standing were the government and theprivate developer. By expanding the traditional basis forstanding through the above framework, however, theassociation, and others like it, are given the means tobring suit, and as a result, a critical, broader basis forbringing environmental suits.

Contacts

Vera [email protected]

The Federal Environment Ministry, Bonn OfficeHeinrich-von-Stephan-Str. 1 Godesberger Allee 90 Bernkasteler Str. 8 53175 BonnTel: +49-1-888-3050Fax: +49-1-888-3053-225E-mail: [email protected]

The Federal Environment Ministry, Berlin OfficeAlexanderplatz 6 10178 BerlinTel: +49-1-888-3050Fax: +49-1-888-3054-375E-mail: [email protected]

The Ministry for the Environment, NatureConservation and Regional PlanningPostfach 60 11 50 14411 Potsdam




Nature Reserve CaseA nature conservation association was denied non-

privileged and relevant expert documents in the course ofa public hearing on the building of a train track.

Relevant Aarhus provisionsArticles 9(2) and (4)

Key issues

• NGO standing

• Interim injunctive relief

• Review of public participation in the decisions onspecific activities

Case study detailsCited case name: Nature Reserve Markische Schweiz

Parties involvedPlaintiff: Naturschutzbund (NABU), a recognised conser-vation group Defendants: Ministry of Environment, Nature Protectionand Regional Planning, the State of Brandenburg and aprivate investor

Background facts In 1994, a private investor brought a petition before the

Regional Planning Board of the State of Brandenburg toexempt a protected area from the Markische Schweiznature reserve. The investor sought to build 46 single-family and semi-detached homes for commercial use.

The public administration of the State of Brandenburggranted the investor a permit to develop the land on the

condition that he reduce the size of his project. The investorthen developed plans for 29 home units and the publicadministration approved the project at a second hearing,exempting the necessary land from the nature reserve.

NABU, a recognised regional conservation group,participated in the initial proceedings as a “necessary”party. At these proceedings, NABU opposed the 46-unitdevelopment plan. However, it was not called upon toparticipate in the second proceeding, where the 29-unitplan was presented and approved.

During the same year, NABU filed a complaint with theAdministrative Court of Frankfurt/Oder (State of Branden-burg) asserting that the proceeding and subsequentapproval were not valid, given the group’s absence as a“necessary” party.

Procedural history In filing its complaint, NABU requested interim injunc-

tive relief suspending development until resolution of thelawsuit. Relief was granted and construction was halted forthe duration of proceedings — a period of three years.

In 1997, the Administrative Court ruled partly in favourof NABU, holding that public authorities erred in notallowing NABU to participate in the second proceeding,since the revised plan represented a substantial changethat required all necessary parties to have been repre-sented at the proceedings.

In Germany, however, such a ruling seldom cancelsthe relevant decisions. In the instant matter, the authorities’decision was only modified. The court ruled that a 25-unitplan, rather than one of 29 units, was proper under existingregulations.

NABU appealed this decision to the HigherAdministrative Court of the State of Brandenburg.

Final outcome In 1998, the Appeals Court reversed the lower court’s

decision, holding that the licence granted by the authorities

141

Germany Case 4



was unlawful and the development plan did not qualify theland as exempt from protected status.25 The investor’sdevelopment plan was denied.

Related actions and campaignsThe case involved the local public through newspaper

coverage and public meetings.

Access to justice techniques In seeking judicial review of the Brandenburg

authority’s decision, NABU exercised a right of standingguaranteed to associations. To this date, this right ofstanding exists in 13 of Germany’s 16 Lander and extendsonly to matters at the Lander level.26

Case study analysisEnsuring participation remains difficult. In the instant

matter, the fact that the court did not render theauthority’s decision void in the absence of NABU — anecessary party — signals that there are still limits tousing the courts to ensure public participation.

Contact

Michael ZschiescheDepartment of Public Participation and Environmental LawIndependent Institute of Environmental ConcernsGreifswalder Strasse 4 10405 BerlinTel: +49-30-428-499-35Fax: +49-30-428-004-85Email: [email protected]: www.ufu.de

142

Baltic Sea Motorway CaseIn filing a judicial complaint against a massive govern-

ment highway project, an environmental NGO obtained anorder temporarily halting construction and established ajudicial precedent that will aid in resolving environmentalcases in the future.



Key issues

• NGO standing




Case study detailsCited case name: Baltic Sea Motorway A 20

Parties involvedPlaintiff: Bund fur Umwelt und Naturschutz (BUND), arecognised conservation groupDefendant: State Office for Road Construction and Traffic,State of Schleswig-Holstein Third-party intervenor (for the plaintiff): Natur-schutzbund (NABU) 27

Background facts Government officials sought to begin an expansion

project along a sub-section of the Motorway A 20, the

Baltic Sea Motorway, in the German State of Schleswig-Holstein. Part of the German Unification trafficdevelopment programme, the project was a special priorityof the federal government. However, the proposed routealso included a 6.3-metre section of the Wakenitz Valleyreserve, an area that qualified under EU law as a protectedflora and fauna habitat.

After an attempt failed to settle differences between thegovernment and environmental NGOs, the German envi-ronmental NGO, BUND, filed a lawsuit seeking to enjointhe government from continuing with the project.

Procedural historyBUND filed a complaint before the Federal

Administrative Court in Berlin asserting that proceduralviolations and practical considerations rendered theproject void.28 In addition, BUND requested interim injunc-tive relief, halting construction during the duration ofsummary proceedings.

In asserting that procedural violations had occurred,BUND stated that officials issued important public docu-ments either late or with limited accessibility. In addition,the planning authority denied an inspection of substantialdocuments during hearing procedures, and modified docu-ments several times without allowing NGO participants toreview the changes or take part in subsequent discussions.

In questioning the reasonableness of the project andplanning process, BUND asserted that officials had notdemonstrated a sufficient need for the project. Moreover, theroad extension as planned ignored less intrusive alternateroutes and made no provisions for reducing noise pollutionor ensuring efficient building and maintenance costs.

On the matter of injunctive relief, in March 1997 thecourt ruled in favour of BUND. In its ruling, a key issue wasthat the area qualified for protected status under Europeanlaw (EEC Directive on the Protection of Birds and Flora andFauna Habitat). As held by the court, officials could notadequately ensure that, if construction were to begin, thearea would not be damaged prior to an official designation


Germany Case 5



of the area as flora and fauna habitat. Moreover, ifconstruction were allowed, BUND’s legal claims wouldimmediately become moot. BUND did not have to post abond nor did it face the possibility of damages if it lost onits claim. The injunction remained in place until the courtissued a final decision on the merits.

Final outcome In May 1998, the Federal Administrative Court lifted the

injunction and, addressing the merits of the case, ruled infavour of the government. In making its decision, the courthad to clarify whether the area in question, which was notyet officially protected under EU law but nevertheless qual-ified for such protection, should be excluded from theproject. Second, the court had to determine whether theEEC Directive on habitat had direct effect or not.

The court ruling suggested a compromise, stating that,while EU law was not violated and the expansion projectcould continue, this was justified only because a tunnelcould be dug under the qualifying area.

With very limited options for an appeal, BUNDrequested a review of the decision by the FederalConstitutional Court in Karlsruhe. The court did not grant areview, citing that no constitutional rights were violated.

Related actions and campaignsIn preparing for the lawsuit, BUND enlisted the serv-

ices of many volunteers and coordinated with other NGOs.The federal authority in Schleswig-Holstein stronglypromoted construction of the motorway and conducted alarge media and public relations campaign.

Access to justice techniquesJudicial review by a federal administrative court was

the only recourse available to BUND. As an environ-mental association, however, BUND’s standing to bring alegal claim was limited to making allegations of violationsof environmental law.

Under German law, the condition of granting NGOsbroad standing for undifferentiated harm limits theclaims that they can make. If an environmental associ-ation bases any or all of a claim on non-environmentalmatters, the judge is instructed to ignore thosegrounds.

Case study analysis In the instant matter, BUND’s claim against the project

hinged equally on economic, noise and logistic consider-ations. However, the court appraised the claim solely onthe basis of environmental law considerations. Seeingthat EU law did not yet fully apply and that a tunnelallowed for less invasive expansion, the claim wasdefeated.

Despite ultimately failing on the merits, the casedemonstrates the importance of filing judicial complaintsin response to questionable government procedures andactions. That BUND successfully halted construction of afederal highway project (without risk of financial liability)illustrates the power of using the courts to secure citizens’rights. The strategy used in this case now serves as a modelfor other citizens and NGOs in limiting questionablehighway and construction projects.

Further, motivated by BUND’s environmental claims,the court created a legal precedent for handling potentialflora and fauna habitat areas in Germany that strengthensnatural resource protection.

The case also shows that limitations on appeals reducecitizens’ access to justice. A substantial limitation on theeffectiveness of this suit was that the administrative courtruling could not be appealed. Under German law, federaladministrative court decisions are final. Such absoluteauthority given to one court directly contravenes the spiritof the Aarhus Convention by limiting citizens’ ability tohave the merits of their legal claims fully appraised throughinterpretation and evaluation of the interpretation. Thisformula is a cornerstone for effective and complete accessto justice.

Contact

Michael ZschiescheDepartment Public Participation and Environmental LawIndependent Institute of Environmental ConcernsGreifswalder Strasse 4 10405 BerlinTel: +49-30-428-499-35Fax: +49-30-428-004-85E-mail: [email protected]: www.ufu.de

144

Elbe CaseAvoiding public participation in a proceeding by offi-

cials underscores the importance of citizen suits, injunctiverelief and the right to appeal all judicial decisions.



Key issues

• Standing



Case study detailsCited case name: Construction site on the Elbe River

Parties involvedPlaintiffs: Bund fur Umwelt und Naturschutz (BUND), arecognised conservation group; Sachsen-Anhalt, a state groupDefendant: German Federal Republic, Administration ofWater and Navigation

Background factsIn the instant matter, federal officials proposed and

approved a federal construction project on a site on theElbe River. Describing the project as maintenance of afederal waterway, the federal government contended thatofficial proceedings involving the pubic were not neces-sary.29 Accordingly, citizen groups, including BUND, were

not informed of the project nor did they participate in anydialogue with government officials before construction.

Given this, German law holds that BUND and othermembers of the public do not have standing to challenge theproject because they were not participants in a public hearing.

Procedural history BUND filed a complaint before the Federal

Administrative Court in Berlin asserting that because theproject involved a federal waterway (Elbe), an approvalprocess involving the public was required. Thus, theapproval process chosen was invalid and the decision tobegin construction void. In this, BUND also requestedinterim injunctive relief, halting construction throughoutthe duration of a summary procedure.

On October 19, 2000, BUND’s request for injunctiverelief was submitted to the court.

Final outcome On October 27, 2000, the court rejected BUND’s

request for relief, affirming the classification of theconstruction as a maintenance project and upholding therelated proceedings. According to the court, the approvalprocess was not chosen with the intent to avoid citizenparticipation and thus BUND’s claims were without merit.The administrative court’s decision could not be appealed.The construction project was approved.

However, the court’s awarding of injuctive relief,halting construction of the road, made a considerableimpression on the public. The signal was that it waspossible for environmental interests to win in court againstinfrastructure expansion efforts.

Related actions and campaignsThe case involved the local public via newspapers and

public meetings.


Germany Case 6



Access to justice techniques The only legal strategy available to BUND was to seek

judicial review of the decision by a federal administrativecourt. In this, BUND had to assert that the approval processwas chosen in order to avoid public participation and there-fore deprive BUND the necessary standing to bring suit.

Case study analysisThe instant case illustrates a typical technique used by

governments and private parties to avoid public participa-tion in decision-making. Generally, a private investorinterested in developing or using a site will approach thegovernment to discuss the scope and details of the opera-tion. Under German law, such a dialogue is guided by the“principle of cooperation.” Too often, however, theinvestor is seeking an expedited approval process and thegovernment acquiecses by initiating a licensing proceedingthat limits or eliminates environmental impact assessmentsand public participation. Further, the agreed scope of theproject will often be smaller on paper than originallyproposed but, in the end, is easily amended in order toincrease the size of the project. All of this occurs beyondthe reach of citizen involvement and control.

Most problematic is the fact that the public, having notparticipated in the proceedings, cannot file a lawsuit to haltthe project. Under German law, public participation in aproceeding is a prerequisite to bringing a legal claimregarding the matter. If, however, a citizen or associationcan demonstrate that the format of the proceedings waschosen with the purpose of eliminating public participa-tion, a lawsuit on the matter will be upheld.30

Filing a complaint is a critical tactic in ensuring moreconsistent public participation. The instant matter illus-trates the importance of filing a complaint in court to

challenge administrative proceedings designed to elimi-nate public participation. As is evident in this case, theresults will surely not always be successful, but citizensmust continue to pressure officials to protect participatoryrights. Citizens must not tolerate false administrative proce-dures or put up with the avoidance of public participation.

Judicial examination of the nature of the project atissue and the government’s rationale for proceeding as itdid is the best means of ensuring public participation.

A substantial limitation on the effectiveness of this suitwas that the administrative court ruling could not beappealed (see also Germany Case 5).

The avoidance techniques illustrated by this caseunderscore a continuing problem in German jurispru-dence. Effective legal mechanisms, such as notice andcomment requirements, need to be developed and consis-tently applied by officials. They must be monitored by thepublic and enforced by the judiciary. That a project canescape public scrutiny and involvement simply by giving ita different label signals the need for reform.

Continued scrutiny in the courts is one of the mosteffective means of accomplishing this.

Contact

Michael ZschiescheIndependent Institute of Environmental ConcernsDepartment of Public Participation and Environmental LawGreifswalder Strasse 410405 BerlinTel: +49-30-428-499-35Fax: +49-30-428-004-85Email: [email protected]: www.ufu.de

146


The Balaton Highway CaseA narrow interpretation of standing for environmental

NGOs prevented them from seeking judicial review ofactions and decisions with clear environmental impacts.



Key issues

• NGO standing (sufficient interest)

• Publicly accessible decision


• Review of public participation in decision-making

Case study detailsCited case name: Somogy Nature ConservationOrganisation v. Ministry of Traffic, Telecommunicationand Water Management of Hungary

Parties involvedPlaintiff: Somogy Nature Conservation Organisation(Somogy County, Hungary), environmental NGO and affil-iate of the Hungarian Birdwatcher SocietyPlaintiff’s representation: Environmental Managementand Law Association (EMLA)Defendant: Ministry of Traffic, Telecommunication andWater Management of HungaryThird-party intervenor (for the defendant): StateHighway Management Company31

Background factsThe Hungarian government had long planned to build

a highway connection between Budapest and the AdriaticSea, along the southern shore of Lake Balaton. Throughoutthe 1990s, several government resolutions were passedand proposals made towards realising this link. Until thattime, the highway, known as the M7, extended onlypartially from Lake Balaton.

In 1993, the State Highway Management Company(SHMC) petitioned the Traffic Inspectorate General for apermit to lengthen the M7 highway.

SHMC proposed two alternate plans for the expansionof the M7. The first plan (called “A” after the Hungarianword alagut, meaning “tunnel”) bypassed villages near thelake through a tunnel. The advantage of this plan was theconservation of wildlife and natural habitats, while thedisadvantage was concentrated pollution at the ends of thetunnel in inhabited areas. The second plan (called “V” afterthe Hungarian word volgyhid, meaning “viaduct”) wouldcut through a 100-hectare forest. Its advantages were lesspollution for inhabited areas, while the obvious disadvan-tage was the clear-cutting of a large area of woodland.

In public hearings on the matter, the mayors andvillage councils of neighbouring communities supportedthe “V” version, while the plaintiff, the Somogy NatureConservation Organisation (SNC), favoured the “A”version, or at least opposed the “V” version.

In 1996, the Inspectorate issued a permit allowing theexpansion of the M7 to move forward with the “V” version.

Procedural historySNC then filed a complaint before the Ministry of

Transport, Telecommunication and Water Management(Ministry), the superior administrative agency on suchmatters, seeking administrative review of the Inspectorate’sdecision to issue a permit.

The Ministry rejected SNC’s claim, stating that thegroup lacked sufficient standing. The Ministry’s ruling

Hungary Case 1

turned on two points. First of all, there was no need toinvolve an environmental NGO, since the state environ-mental and nature conservation agencies took part in thepermitting process.

Second, the matter was not an “environmental” case asdefined by the Hungarian Environmental Protection Act;therefore no NGO standing was conferred.

Subsequently, SNC filed a second complaint, this timebefore the Capital Court of Budapest, seeking judicialreview of the Inspectorate’s decision. In similar form, theCapital Court dismissed the case, holding that SNC lackedstanding in such matters.

SNC appealed to the Supreme Court in 1997 and againin 2000, seeking an extraordinary judicial remedy. On bothoccasions, the court dismissed SNC’s claim for lack ofstanding. In the latter decision, the Supreme Court detailedits standard for granting standing to environmental NGOs.

Final outcome The Supreme Court’s decision precluded an environ-

mental NGO from challenging government decisions inmatters not explicitly involving Hungarian environmentallaws. Concurrent with this decision, several similar high-level judicial decisions on standing were also issued, eachsystematically refusing to grant NGOs standing in caseswith environmental relevance, but not directly concerningenvironmental impact assessments (EIAs) or environmentalaudits.32 Thus, proposed activities with clear environmentalimpacts, though governed by other bodies of law, werebeyond the reach of those groups most qualified to chal-lenge government decisions affecting the environment.

Concerning the highway, the plan to build the orig-inal “V” version was not implemented, and a newalternative requiring less deforestation and costing lesswas being considered.

Related actions and campaignsSNC filed a complaint with the Chief Public Prosecutor,

requesting that action should be taken against theconstruction permit. The prosecutor’s office refused theapplication, referring to the Act on Prosecutors, whichprevents prosecutors from taking action while a lawsuit isproceeding.

SNC also conducted a mass media campaign to raiseawareness of the environmental problems involved inextending the M7 highway.

Access to justice techniquesIn challenging the Inspectorate’s decision, SNC’s only

recourse was to file an action before an administrative orcapital court, pursuant to Chapter 20 of the Hungarian CivilProcedural Code.

In addition, SNC cited a lower countryside town court

decision in asserting that standing had been established forNGOs in such cases.

Case study analysisThe Supreme Court’s ruling took a narrow view of

what constitutes environmental matters that triggerstanding for NGOs. Hungary’s guiding provision onstanding, article 3 paragraph 4 of the Act on AdministrativeProcedure, requires that a party must have a right or legiti-mate interest affected by the case. Referring to this law, theCourt held that environmental NGOs have a legitimateinterest only in those matters directly involving “environ-mental” statutes, “environmental” impact assessments, or“environmental” audits.33 In this, the Court hinged standingon terminology rather than on impact.

The instant matter illustrates the fact that a host ofmatters, while not labelled “environmental” as such, clearlyhave environmental consequences. The “legitimate interest”of NGOs that the Court claimed to uphold should be nodifferent than between matters labelled as environmentaland those simply having environmental consequences.

Financial barriersA positive aspect of the case is that all the proceedings

were almost free of charge for the plaintiff, since —according to article 5 of Act no. 93 of 1990 onAdministrative Fees — NGOs are exempt from administra-tive or court fees.

A second positive element was that the legal servicesprovided to SNC were provided free of charge by EMLA, anenvironmental public interest legal organisation. Theirmodel of pro bono legal services should be supported andfinanced throughout Eastern Europe.

ContactsPlaintiffSomogy Termeszetvedelmi SzervezetKossuth L. u. 628708 SomogyfajszHungaryTel: +36-85-337-146

DefendantKozlekedesi es Vizugyi MiniszteriumDob u. 75/811077 BudapestHungaryTel: +36-1-322-0220

Third partyAllami Autopalya Kezelo Rt.Fenyes Elek u. 7/131024 BudapestHungaryTel: +36-40-405-060




Author of case study Csaba Kiss, Environmental AttorneyEnvironmental Management and Law Association 1076 BudapestGaray u. 29/31HungaryTel/Fax: +36-1-322-8462Email: [email protected]

149

H U N G A R Y C A S E 1



Metal Plant CaseThe denial of a local resident’s access to environmental

information on a metal waste facility on the grounds thatthe individual did not have standing in any lawsuitsinvolving the facility was held by a court to be illegal.


• Article 9(1)

Key issues

• Judicial review of denial of access to information

• Standing


• Judicial interpretation and precedent

Case study detailsCited case name: Kovari v. Environmental Inspectorate ofNorthern Hungary

Parties involvedPlaintiff: Istvan Kovari, resident of SajokereszturPlaintiff’s representation: Environmental Managementand Law Association (EMLA)Defendant: Environmental Inspectorate of NorthernHungary

Background factsIn 2000, Istvan Kovari, in his private capacity, filed a

request before the Environmental Inspectorate of NorthernHungary to access environmental information related to air

and noise emission data of BEM Co., a metal waste repro-cessing plant. The Inspectorate refused the request, statingthat Kovari lacked standing in any of the cases related toBEM Co.’s emissions.

Procedural history In 2001, Kovari filed a complaint before the local City

Court of Miskolc, seeking a court order to require theInspectorate to provide the information.

Kovari based his claim on Act no. 63 of 1992 (Freedomof Information of Public Interest), which allows any personacting in the public interest to seek a court order for theprovision of information. Importantly, the burden restswith the holder of the information to prove why a refusalof information is lawful or well founded.

At the heart of his complaint was the argument thataccess to information should not be reserved solely forthose with standing in a related matter, but should be avail-able to all in promoting the public interest. Moreover, thedecision to provide information should not turn onwhether the information relates to a private company or onwho paid for the collection and processing of the informa-tion in question.

At a hearing held on September 5, 2001, the City Courtof Miskolc ordered the defendant to disclose the requestedinformation.

The defendant appealed the first level judicial decision,stating that the requested information served as a basis formaking administrative decisions, and thus the preparatorynature of the information prevented its disclosure.

On November 13, 2001, the Borsod-Aba uj-ZemplenCounty Court upheld the first level court’s judgement, andordered the defendant to disclose the requested informa-tion. The court also construed the notion of informationused in preparing a decision, and interpreted it in a narrowsense, giving priority to transparency and disclosure.


Hungary Case 2



Final outcome While the final decision was still pending, the

Inspectorate voluntarily provided part of the air emissiondata. The last piece of the requested information was deliv-ered by the defendant to the plaintiff via mail. The costs oflitigation, however, had still not been transferred to theplaintiff from the defendant by August 2002.

Related actions and campaignsEcological Institute for Sustainable Development

Miskolc, an environmental NGO supporting Kovari in hissuit, participated in an environmental impact assessment ofBEM Co.

In August 2000, local residents also filed a complaintwith the ombudsman concerning the process of grantingBEM Co.’s permit and complaining about the shortcomingsof the EIA process.

Access to justice techniques Kovari filed a lawsuit as soon as his request was denied

in order to compel judicial review of the Inspectorate’spolicy on information access.

Case study analysisThe instant case reveals the advantage of filing a

lawsuit in response to the government refusing to provideaccess to information. While the decision was pending, theInspectorate voluntarily provided some information.Perhaps more significantly, the court defined concepts andestablished precedent for the interpretation of the appli-cable information law as a result of the lawsuit. Thus, thebenefits of the lawsuit will extend beyond Kovari himselfand may be used by other citizens and NGOs in future.

Given that the lawsuit was filed by an individual therewas a minimum court fee. If an NGO were to initiate asimilar lawsuit, there would be no fee. Because fees insuch matters are either nominal or non-existent, there islittle hesitation in initiating such review processes.

ContactsPlaintiffIstvan KovariPetofi S. u. 33791 SajokereszturHungary

DefendantEszak-Magyarorszagi Kornyezetvedelmi Mindszentter 4

Felugyeloseg3530 MiskolcHungaryTel: +36-46-517-300

Local environmental NGOOkologiai Intezet a Fenntarthato FejlodeseertAlapitvanyKossuth L. u. 133525 MiskolcHungaryTel: +36-46-352-010

Author of case study

Dr. Csaba Kiss, Environmental Attorney Environmental Management and Law Association Garay u. 29/311076 BudapestHungaryTel/Fax: +36-1-322-8462Email: [email protected]

152

Petrol Plant CaseAn NGO challenged a municipality issuing a permit for

the construction of a petrol station without allowing experttestimony representing public interest concerns to beheard during hearings on the proposed station.



Key issues


• Independent environmental expert testimony

Parties involvedPlaintiff: Asian and American Partnership(“Partnership”), NGO Defendant: Almaty City Government

Background facts The Akim (local government) of Almaty initiated a

proceeding to construct a petrol station in a densely popu-lated district of Almaty. During the course of theproceedings, the Akim refused to hear any environmentalexpert testimony addressing potential environmental harmstemming from construction of the station. The station wassubsequently constructed.

Procedural history On behalf of individual Almaty citizens opposed to the

construction of the station, the Partnership filed a lawsuitagainst the city government seeking to halt construction ofthe station.

The court ruled in favour of the city, stating that the citywas reasonable in deciding that environmental expert testi-mony was not necessary in the light of existing documentsand the deliberations already made by the city. Further, thecourt found no clear evidence that the station posed an envi-ronmental threat justifying the need for construction to behalted in the absence of environmental expert testimony.

Final outcome Despite the court’s ruling, a settlement agreement was

reached in November 2000 between the owners of thepetrol station and the Partnership, allowing for several envi-ronmental safeguards to be implemented at the station.


Access to justice techniques The Partnership attempted to participate in administra-

tive proceedings concerning the construction by offeringexpert testimony to counter the government’s expert.Upon being denied, judicial review of the city’s decisionwas sought. Despite losing the case, the NGO was able toinfluence the final plans.

Case study analysisThe case underscores a continuing lack of procedural

rights to public participation in administrative hearings.Both the decision of the city to deny expert testimonycountering the city’s assertions and the court’s affirmationof this decision were arbitrary and without due cause.

Contact Dina Smirnova, DirectorKazLEEPTel: +732-72-696-445E-mail: [email protected]


Kazakhstan Case 1



Waste in the CaspianA local NGO’s efforts to enforce existing environmental

laws against a drilling company were made more difficultby a lack of guiding precedent and an absence of a consis-tently applied procedural mechanism for enforcingapplicable law.


• Article 9(3)

Key issue


Parties involvedPlaintiff: PU Caspiy — XXI (PU)Defendant: Offshore Kazakhstan International OperatingCompany (OKIOC)

Background facts From July 1999, OKIOC discharged 36-38 tonnes per

day of unfiltered waste into shallow waters of the NorthCaspian Sea.

Subsequent monitoring revealed that areas adjacent tothe discharges were highly toxic and posed a threat tosurrounding aquatic plantlife and wildlife.

OKIOC’s discharges took place in a state sanctuaryzone within the Caspian Sea.

Procedural history PU submitted several letters to the local procurator

(prosecutor) of Atyrau requesting that relevant provisions

of special environmental regulations for the sanctuaryzone, as well as provisions of the 1997 Law on SpeciallyProtected Areas, should be enforced against OKIOC.

In response to PU’s complaint, a panel of prosecutorsconfirmed that OKIOC had in fact unlawfully dischargedpollutants into the protected zone, but refused to bring anenforcement action against the company. Instead, thepanel merely issued a declaration that such dischargesshould cease, as they were in violation of the Law onSpecially Protected Areas.

Final outcome No further action was taken nor was OKIOC made to

pay damages for environmental harm caused by its actions.


Access to justice techniques PU pursued its only option for legal action — seeking

the representation of its interests by the local procurator.

Case study analysisIn this matter, PU lacked the ability to bring a suit

directly against OKIOC. Instead, PU’s only option was topetition the local panel of prosecutors to represent itsinterests against the company. Such reliance is problematicin terms of environmental law enforcement where prose-cutors lack precedent and expertise to guide them inbringing suits.

Furthermore, prosecutors, as arms of the state, areoften influenced by other interests and will therefore oftennot enforce laws aggressively. If PU had had a proceduralright to bring suit directly as an environmental association,the result might have been different.


Kazakhstan Case 2



Contact

Ibragim Kushenov, Chairman PU Caspiy — XXI

City of Maslichat

Tel/Fax: +7-31-222-31029/222-33246


156

Excessive Fees CaseAn NGO representative was not shielded from legal

action for comments made at a public hearing.Furthermore, the public prosecutor defending the repre-sentative demanded excessive fees for legal services,despite the court’s failure to resolve the matter.


• Articles 3(8) and 9(4)

Key issues

• Review of public participation in decision-making

• SLAPP suits


Parties involvedPlaintiff: LTD Monitoring, environmental monitoringlaboratoryDefendant: Ms. Chernova, representative, CaspiyTabigaty (NGO)Defendant’s representation: Atyrau Public ProsecutorOffice

Background factsOn April 7, 2000, at a public hearing in conjunction

with an environmental impact assessment (EIA) of a localdevelopment project, Ms. Chernova, representing the NGOCaspiy Tabigaty, asserted that the company seekingpermission for the project heavily polluted the site.

Chernova’s remarks stood in sharp contrast to earliertestimony by LTD Monitoring, a laboratory hired by the

company to conduct environmental monitoring onsite.LTD Monitoring testified that no increases in discharges ofpollutants were observed.

To defend herself against LTD Monitoring’s claims,Chernova sought representation by the Atyrau PublicProsecutor.

Procedural history The director of LTD Monitoring filed a lawsuit in May

2000, in the Atyrau City Court against Chernova allegingthat her remarks damaged the business reputation of thelaboratory. The laboratory sought KZT 1 million (USD7,000) as compensation for “moral harm” done to thecompany by Chernova’s statements.

After seven months and the calling of severalwitnesses, the City Court failed to resolve the claim andon December 31, 2000, ruled the matter closed without adecision.

Final outcome Despite the absence of a court ruling, the Public

Prosecutor required a fee of KZT 20,000 (USD 141) fromChernova for its representation.


Access to justice techniques Chernova pursued her only viable option for legal

defence — seeking representation by the local prosecutor.

Case study analysisChernova’s statements regarding pollution onsite

should not be permitted to be a source of litigation. Whenspeaking in the course of a public hearing, those making


Kazakhstan Case 3



comments that are neither slanderous nor libellous shouldbe granted immunity from potential lawsuits.

In this matter, Chernova’s testimony directly related tothe EIA and thus was relevant and proper. Allowing partiesto bring lawsuits against individuals for such commentsmade during public hearings prevents greater publicparticipation. For fear of having to go to court and payingsignificant fees, those who should otherwise testify at hear-ings will not.

The excessive fee required of Chernova for her repre-sentation is an additional hurdle to public participation andaccess to justice. In this matter, the fee should have beeneither reduced or waived given the subject matter of thesuit and Chernova’s status as an NGO representative. Inaddition, a fee shifting or fee forgiveness scheme should beused when, as here, the party suing has not succeeded on

the merits and is in a better financial position than thedefendant.

In sum, requiring that individuals and NGOs payextreme fees with no opportunity for fee shifting or waiverprevents socially important litigation from being filed. Inaddition, as illustrated in this case, it also makes it difficultfor individuals and NGOs to defend themselves for havingparticipated in public decision-making.

Contact

Chernova, DirectorCenter of Environmental and Legal Initiative “Globe”Tel: +783-1-222-415-73E-mail: [email protected]

158

Extrajudicial procedureThe extrajudicial procedure to challenge acts and omis-

sions by public authorities that contravene provisions ofthe national law may provide an excellent remedy fordenials of the right of access to information of members ofthe public.


• Article 9(3) and (4)

Key issues

• Administrative review procedure on substantive envi-ronmental law issues

• Extraordinary appeals


Case study detailsCited case name: Complaint of Residents, dated June 8,2000 (registration no. 2000/05).

Parties involved Plaintiffs: Resident 1 and Resident 2Defendants: Public officials of the ministries ofEnvironment and Health in the early procedure, and laterthe ministries of Environment and Health themselves

Background factsOn April 17, 2000, Resident 1, on behalf of the residents

of Zemieji Sanciai region of Kaunas appealed to theMinistry of Environment to assess the actions of two public

officials of the Kaunas Region Environmental ProtectionDepartment (REPD), when they adjusted the detailed terri-torial plan for building a filling station at 67 A.Juozapaviciaus Avenue. The claimant specified that para-graphs 31-33 of the Special Provisions of the Exploitation ofLand and Forest, adopted by Resolution no. 345 of March24, 1998, of the government of the Republic of Lithuania,were seriously violated when adjusting the detailed territo-rial plan. The suitability (geographic location, ecologicalsituation) of the land plot at 67 A. Juozapaviciaus Avenuefor building the filling station had not been assessed, andthe public officials of Kaunas REPD ignored violations ofthe devised and adjusted detailed plan:

1) The protection zone of the liquid fuel station was notobserved.

2) The distance from the underground fuel reservoir toresidential houses was shorter than is required by thestandards.

3) The detailed plan was devised on the basis of non-exis-tent requests of residents to change the designation oftheir residential houses.

The fact that signatures of over 200 residents protestingagainst the building of the filling station on this land plothad been collected was not taken into account. Theclaimant, on behalf of the residents of Zemieji Sanciairegion, requested the establishment of an independentexpert commission to assess the actions of public officialsof Kaunas REPD.

The vice-minister of Environment, in letter no. 01-24-2081 “Concerning the Actions of Kaunas REPD whenadjusting the detailed plan of the land plot at 67 A.Juozapaviciaus av.” of May 16, 2000, answered toResident 1 that:

1) Kaunas REPD did not object to the consideration of theland plot located at 67 A. Juozapaviciaus Avenue in


Lithuania Case 1

Zemieji Sanciai as a place for building the filling station,keeping the standard distances to residential housesand other buildings.

2) It was shown in the conditions of the detailed plan ofthe land plot and the main scheme drawn up by spe-cial-purpose company Kauno Planas that the multi-apartment house at 26 Sodu street was 50 meters awayfrom the filling station, which complied with the stan-dards, and private houses at 65 A. JuozapaviciausAvenue and 34 Sodu street were 15 metres and 27.5metres away, respectively. However, it was also indi-cated in the conditions that it was only possible to buildthe filling station after changing the designation ofthese houses from residential to economic-commercial,as the distance from these buildings to the under-ground reservoir of the filling station was less than 50metres.

3) During the design stage, designers planning the fillingstation would have to conduct research on air pollu-tion and assess the planned level of pollutants to bedischarged into the air. Kaunas REPD would make thedecision on building alternatives, according to the let-ter, only when the project was in conformity with allenvironmental requirements and when the conditionsof the detailed plan regarding the change in designa-tion of buildings from residential to economic-com-mercial needs were implemented.

However, no assessment was made of the actions ofthe public officials of Kaunas REPD when adjusting thedetailed plan for building of the filling station at 67 A.Juozapaviciaus Avenue, in the answer of the vice-ministerof Environment. The commission of experts for the assess-ment of environmental violations requested by theclaimant was not established. Thus, the Ministry ofEnvironment violated paragraphs 6.11 and 6.13 of theRegulations of the Ministry of Environment, adopted onSeptember 22, 1998, by Resolution no. 1138 of the govern-ment of the Republic of Lithuania.

On April 17, 2000, Resident 2, on behalf of the residentsof Zemieji Sanciai region of Kaunas city, appealed to theMinistry of Health, requesting the assessment of the actionsof Kaunas PHC when adjusting and adopting the detailedterritorial plan for building the filling station. The claimantpointed out that, having adjusted the detailed territorialplan, Kaunas PHC had violated paragraphs 31-33 of theSpecial Provisions on Exploitation of Land and Forest,adopted by Resolution no. 345 of March 24, 1998, of thegovernment of the Republic of Lithuania. In her complaint,the claimant listed the same arguments as the ones statedin the complaint of Resident 1 of April 17, 2000, to theMinistry of Environment. In the opinion of the claimant,Kaunas residents’ rights to a clean and healthy environ-ment would be seriously violated if plans for the filling

station were approved. The claimant asked the Ministry ofHealth to establish a competent commission of expertswho would assess the current situation and the violationscommitted when devising and adjusting the detailed planfor building the filling station.

The vice-minister of Health, in letter no. 31-08-2731 ofMay 19, 2000, responded to Resident 2 that the commis-sion for the assessment of the legitimacy of activities ofKaunas PHC when approving and adjusting the detailedplan for building the filling station was established byOrder no. 240 of May 5, 2000, of the Minister of Health.The commission assessed the situation and presented itsfindings. The Ministry of Health approved these findings.The Certificate “Concerning the Detailed Plan forDesigning of Filling Station at 67 A. Juozapaviciaus av. inKaunas” of May 11, 2000, of the expert commission statedthe following violations:

1) In line with the scheme of the detailed plan, the dis-tance from the underground fuel reservoir to the resi-dential house at 26 Sodu street is 45 metres.

2) The submitted documents do not specify the way inwhich the condition of the general plan to change thedesignation of private houses at 34 Sodu street and 65A. Juozapaviciaus Avenue to that of non-residential willbe implemented.

3) The level of traffic noise was assessed in a contradicto-ry way.

4) The stretch between Mazeikiu street and Sodu streetwas proposed to be widened in accordance with addi-tional provisions of an initial environmental impactassessment of the detailed plan for the land plot at 67A. Juozapaviciaus Avenue devised by the special-pur-pose company, Kauno Planas. Thus, the analysis ofimpacts for the safety of pedestrians had not been car-ried out.

The Commission submitted the following proposals:

1) The sanitation zone of the filling station at 67 A.Juozapaviciaus Avenue must conform to the require-ments of existing legal acts.

2) Additional calculations of traffic noise on Mazeikiu andSodu streets should be made.

3) The design should take pedestrian safety into account.

However, the letter of the vice-minister of Health didnot respond to the request to assess the actions of KaunasPHC when adjusting and adopting the detailed plan forbuilding the filling station.



Procedural historyThe Chief Administrative Disputes Commission

received the complaint of the claimants, Resident 1 andResident 2, on June 8, 2000 (registration no. 2000/05-43), inwhich they asked the commission to assess the responsi-bility of the ministries of Environment and Health of theRepublic of Lithuania when assessing the activities ofemployees of institutions under their subordination:Kaunas REPD, which is subordinate to the Ministry ofEnvironment, and Kaunas Public Health Centre (KaunasPHC), which is subordinate to the Ministry of Health.

The claimants stated in their complaint that they hadappealed to the above ministries in accordance withadministrative procedure. However, the responses of theministries did not satisfy them, as the ministries only statedviolations that the claimants had pointed out. The mainrequest of the claimants to review and assess the actions ofKaunas REPD and Kaunas PHC when adjusting andapproving the detailed territorial plan for building thefilling station was not considered. The claimants asked thecommission to order both the ministries of Environmentand Health to assess their complaints of April 17, 2000,exhaustively in accordance with the Law on PublicAdministration of the Republic of Lithuania.

The Chief Administrative Dispute Commissionappealed to the administration of Kaunas County Office(the institution responsible for the approval of documentsof territorial planning) and the State Territorial Planningand Construction Inspectorate (which controls the prepa-ration of territorial planning documents, carrying outadjustment and public consideration procedures, and veri-fying the conditions in these documents and theircompliance with the requirements of the summary of terri-torial planning standards).

Letter no. S, G-595 of June 16, 2000, of the KaunasCounty Administration to the Chief Administrative DisputeCommission asserted that “the project has been adjusted withall institutions supervising whether the standards are beingcomplied with, including Kaunas RPED and Kaunas PHC,and no comments were provided.’ The report on the publichearing indicated that “no observations or objections to thisdetailed plan were received during the public hearing.”

The head of the State Territorial Planning andConstruction Inspectorate stated in his Letter no. 04-06-07-37-P of May 16, 2000, that the conditions of the detailedplan of the land plot at 67 A. Juozapaviciaus Avenueviolated the requirements of Special Provisions onExploitation of Land and Forest, adopted on March 24,1998, by Resolution no. 345 of the government of theRepublic of Lithuania, in that the residential house at 34Sodu Street is within the protection zone of the fillingstation, and that the distance from the liquid fuel stationand underground reservoir to the planned roadway in theterritory of the filling station at Sodu Street is insufficient.

Final outcomeThe Chief Administrative Dispute Commission

concluded that, in accordance with articles 6 and 8 of the Lawon Environmental Protection of the Republic of Lithuaniaand paragraphs 7.8, 7.10, and 5.3 of the Regulations of theMinistry of Environment approved by Resolution no. 1138 ofSeptember 22, 1998, of the government of the Republic ofLithuania, the Ministry of Environment not only had the rightbut was also required to reverse or modify the decision of theregional environmental protection department. However,the Ministry of Environment only stated the violationscommitted by Kaunas REPD when adjusting the detailedplan and did not take any actions to reverse the decision ofits subordinate institution.

The Chief Administrative Disputes Commission alsoconcluded that, in accordance with paragraph 6.26 ofRegulations of the Ministry of Health, adopted byResolution no. 926 of July 24, 1998, of the government ofthe Republic of Lithuania, and articles 37 and 84 of the Lawon the System of Health Care of the Republic of Lithuania,the Ministry of Health, after receiving the conclusions ofthe established commission had to assess the actions of thepublic officials of Kaunas PHC when adjusting the layoutscheme of the filling stations in Kaunas city and thedetailed plan for building the filling station on the land plotlocated on A. Juozapaviciaus Avenue. However, this wasnot done.

The Chief Administrative Dispute Commissiondecided, on the basis of the factual findings and the docu-ments presented:

• to instruct R. Alekna, the minister of health, to ensurethe assessment of the legitimacy of activities of thehead of Kaunas PHC and responsible public officials,when adjusting the detailed plan of the land plot locat-ed at 67 A. Juozapaviciaus Avenue in Kaunas;

• to instruct D. Lygis, the minister of environment, toensure that violations committed by the public officialsof Kaunas REPD when adjusting the detailed plan ofthe land plot at 67 of A. Juozapaviciaus Avenue inKaunas and “the correction of the lay out scheme of fill-ing stations in Kaunas city (Supplement no. 2)” havebeen eliminated in accordance with the procedureestablished by law;

• to instruct the ministries of Health and Environment tonotify the claimants by July 26, 2000, about the resultsof the enforcement of the decision; and

• that the decision of the Chief Administrative DisputeCommission must be carried out by July 26, 2000, withnotification of the Chief Administrative DisputeCommission about its implementation.

L I T H UA N I A C A S E 1


The claimants had the right to appeal the decision ofthe Chief Administrative Dispute Commission to theHigher Administrative Court within a period of 20 daysafter receiving the decision.

The claimants also had the right to apply to theHigher Administrative Court concerning the enforcementof the decision of the Chief Administrative DisputeCommission, if the institutions responsible for the imple-mentation of the decision did not implement it withinthe set time frame.

The ministries of Environment and Health enforceddecision no. 2000/05-43 of the Chief AdministrativeDispute Commission, dated June 22, 2000. Despite this,the claimants appealed to the Higher AdministrativeCourt complaining about the insufficient implementationof the decision of the Chief Administrative DisputeCommission. However, they later withdrew thecomplaint.


Access to justice techniquesThe extrajudicial administrative procedure of the

complaint (according to the Law on AdministrativeDispute Commission of the Republic of Lithuania) wasused as it is more expeditious than a lawsuit (a complaintshall be reviewed within 14 days after submission to theCommission) and free of charge for the parties involved(claimant and the institution appealed against).



Case study analysisThe case reveals the advantages in specific cases of

using the administrative review procedure instead of thejudicial procedure that may entail more time and financialbarriers. It also shows how the standard of review ofadministrative bodies over their subordinates can bedeveloped through such appeals.

Contact Stasile Znutiene, Chief Specialist Public Information Division, Ministry of EnvironmentA. Jaksto str. 4/9LT-2694 VilniusTel: +370-2-614-453Fax: +370-2-220-847E-mail: [email protected]

The Sarmi Park CaseCitizens residing near a public park faced a series of

procedural and substantive obstacles before administrativebodies and the courts in attempting to participate inconstruction permit decisions related to the park.


• Article 9(1), (2), (3) and (4)

Key issues


• Administrative review procedure



• Timely procedure

Parties involvedPlaintiff: 10 residents from among 280 petitioners Plaintiffs’ representation: Ecolex, Moldovan public interestenvironmental NGO (Environmental Public Advocacy Center,or EPAC)Defendants: FIFIRA, International Philanthropic Fund ofthe Afghanistan War Invalids; Chisinau Municipality

Background facts In October 1999, construction started on tracts of land in

Sarmizegetusa Park in Chisinau, Moldova. In March 2000,several residents in the neighbourhood of the park soughtthe assistance of the Moldovan EPAC. EPAC attorneysdetermined that, since construction began, the residents of

the area had been unable to get information on what wasbeing built and who the owners were, despite repeatedrequests to the municipal authorities. In addition, the resi-dents attempted to file a complaint in court detailing theiropposition to the decision to permit construction, pursuantto the Law on Petitioning, but remained unable to provokeany response from the municipality.

EPAC initially submitted a request for informationunder the Law on Environmental Protection. In April 2000,the Chisinau Municipality responded that the land in thepark had been allocated to:

1) Nazaret Company, for construction of an office build-ing and parking lot;

2) the International Philanthropic Fund of the AfghanistanWar Invalids (FIFIRA), for construction of a 40-carparking lot; and

3) the Union of Evangelist Churches, for construction ofa church.

The municipality further noted that after reviewing thecitizens’ petition, they would annul the decision allottingland to Nazaret Company.

Procedural history EPAC pressed the case to the higher-level government

office charged with coordinating the activities of the localpublic administration, the Chisinau Prefect’s Office. In apetition to the Prefect’s Office, EPAC urged that the deci-sions allotting parkland to FIFIRA and the Union ofEvangelist Churches should be remanded.

The Prefect’s Office took no action, at which pointEPAC, in accordance with the Law on PublicAdministration, took legal action, challenging the decisionof the municipality in court. In addition, EPAC separatelypetitioned the Chisinau Environmental Agency to order ahalt in construction because the necessary environmental


Moldova Case 1

assessment had not been undertaken. The EnvironmentalAgency ordered the cessation of construction.

In June 2000, EPAC’s lawsuit was submitted to theAdministrative Court of Chisinau Tribunal, namingChisinau municipality and FIFIRA as defendants andrequesting annulment of the municipality’s decision anda halt to construction.

34EPAC asserted that the residents’

procedural rights had been violated given the failure todisclose information regarding the land allotment deci-sion, to respond to the citizens’ petition, and to secure aproper environmental expertise prior to starting construc-tion. Moreover, the suit claimed, defendants committedsubstantive violations of both the Law on Green Spaces,which specifies that “constructions incompatible with theuse of green spaces will be prohibited,” and the ForestCode, which prohibits the removal of green spacescontaining trees and bushes. Finally, EPAC alleged thatFIFIRA violated Moldovan laws by taking a larger landsurface than authorised, surrounding it with a fence, andremoving several trees.

In its response, FIFIRA submitted documents ofapproval from the State Environmental Inspectorate, theDirectorate of Control of Urban Construction, and the func-tioning authorisation of the Chisinau municipality.

At the onset of the court review, EPAC requested aninjunction to halt construction, which was accepted by thecourt. During the trial period, construction was halted butbegan soon afterwards during the appeal process.

The court rejected EPAC’s claims, on the basis that theLand Code, while enacted before construction began, waspassed after the municipality’s decision. Moreover, inSeptember 2000, the municipality excluded SarmizegetusaPark from the listing of parks to be considered as “greenspaces,” although this occurred during the course of the trial.

In November 2000, EPAC appealed to the AppealsCourt of Moldova. Pending transfer of EPAC’s appeal to theAppeals Court, the Ministry of the Environment investi-gated the municipality’s actions in excluding the park fromprotective status and required that Sarmizegetusa Parkmust be included in the green space area of Chisinau.Meanwhile, construction resumed on the site. EPAC didnot request a further injunction because FIFIRA threatenedthat they would request payment for damages from theEPAC if they won the case.

EPAC’s appeal was not transferred to the Appeals Courtuntil March 2001. Several court sessions were delayed dueto the failure of the defendants to appear. Ultimately, theAppeals Court affirmed the lower court’s decision, holdingthat EPAC’s claims were without merit.

Final outcome EPAC’s suit was appealed to the Supreme Court of

Justice in March 2002. Since then, two hearings, in May andJune 2002, were postponed due to the failure of the defen-dants to appear. On June 20, 2002, the Supreme Court of

Justice rejected the second appeal as groundless. At therequest of the plaintiffs, EPAC was preparing an applica-tion to the European Court for Human Rights to appeal thedecision once more. Meanwhile, despite the decree of theEnvironmental Agency to include the park as a protectedgreen space, construction continued at the site.


Access to justice techniques EPAC pursued judicial review and appeals of the

municipality’s actions and applied for injunctive relief inthe court of first instance.

Case study analysisObstacles to access to information

Initially, the citizens were unable to have proper ortimely access to information. When aided by the EPAC instating their demands, citizens were able to compel localgovernment compliance with laws on access to informa-tion, but compliance clearly is a privileged exceptionrather than a standard practice.

Excessive delayPerhaps the most important obstacle illustrated by this

case is the lack of a legal requirement regulating theappeals process or ensuring a speedy trial and decision.This manifests itself in several ways. First, defendants aregiven the opportunity to delay proceedings almost indefi-nitely. When there are no rules detailing when a defendantmust respond, defendants can delay the start of a trialsimply by failing to send their representative to court. Inaddition, once the initial court hearing is set, the casecannot proceed without signatures from both parties. Thisagain offers the defendant a way to delay the trial by failingto appear.35 While the judge can issue, in theory, a decisionwithout the presence of the defendant and can issue a fineto the defendant for not appearing, this procedure is rarelyapplied in practice. This would not present a significantproblem except that the defendant’s absence from court,even when due to his own negligence, is a valid basis forappeal. Hence a defendant can guarantee that several trialswill be necessary before a final decision can be rendered,simply by choosing not to attend his own trial!

Another aspect of the delay of the trial process in anappeal is that the transfer of court files and information tothe higher-level court can take many months. In this case,one appeal required a delay of five months so that filescould be transferred to the higher court.

Injunctive relief The failure to provide a speedy trial, for the reasons

outlined above, is compounded by the reluctance of courts




or administrators to issue any sort of injunctive relief.Under the law, injunctions could have been issued by theInspectorate for Construction Quality, the EnvironmentalState Inspectorate, the municipality, or the court (notably,the Chisinau Environmental Agency, which called for a haltto construction, could not issue injunctions). When issued,failure to comply with an injunction, or efforts to sell prop-erty that is subject to a legal injunction, can be punishedwith a fine of up to 25 minimum salaries.

Most important, because there are no guidelines forjudges in issuing injunctions, there was no way for EPAC topersuade the Appeals Court judge to issue an injunctiononce his initial decision was made. Hence, in this case,construction continued unabated even while EPAC judi-cially challenged the permitting of construction and a stategovernment body issued an order of cessation.

Further, the provisions that allow for compensation ofdamages due to injunctions made it almost impossible forEPAC to press for an injunction after the first stage. In itsdiscretion, the court can require a plaintiff to pay damagesfor the cost of the injunction to the defendant if he loses thecase. In this case, EPAC’s successful injunction ran outbefore the appeals process. EPAC faced the threat of largedamage costs if it sought to renew the injunction and lostthe appeal. This obstacle represents a continued problemin enabling citizens and NGOs to achieve injunctive relief.

The case also illustrates the impact of the denial ofinjunctive relief on efforts to secure rights and interests.Arguably, if construction were halted during appeal by aninjunction, the municipality would have recognised thepark as a green space requiring protection. The fact thatconstruction commenced gave the municipality latitude toexclude the park from green space protection during thecourse of the trial.

Overlap of responsibilitiesThe failure to define administrative jurisdictions among

various government agencies involved in a common issueis illustrated by the conflicting and overlapping authorisa-

tions received by FIFIRA. For example, the HydrometeoAgency approved construction of a parking lot for 40 cars,while the municipality authorised construction of an 80-carlot. In case of such a discrepancy, the Prosecutors’ Office isempowered to resolve the disagreement, but has no timeframe in which to act.

In the instant matter, EPAC received assurances thatthe Prosecutors’ Office would resolve this discrepancy atthe next municipality council meeting. Those assuranceswere the only action to be taken and appeared question-able given that representatives of the Prosecutors’ Officerarely attend the meetings of the municipal council,despite being legally required to attend. In sum, the effortto coordinate permitting processes is cursory at best andhinders effective and meaningful citizen input and therepresentation of their interests.

Judgement rationaleAnother significant access to justice problem is that

when a judge issues his decision on a case, he eitheraccepts or rejects it, but does not provide any rationale forhis decision. Holdings are provided when the case isappealed, and even then only after the appeal is submitted.

The effect of this is to prevent de novo review of thematter by the Appeals Court or allow the court to questionindependently whether the lower court abused its discre-tion. Rather than allowing for an attorney to challenge thelogic of a judicial decision, the appeals stage becomes yetanother opportunity for the lower court judge to reject theparty’s case — this time for the benefit of the higher court.This unfairly restricts the ability of lawyers to challengeanew the legal and factual analysis of the case.

Contact

Pavel ZamfirEcolex MoldovaE-mail: [email protected]

M O L D O V A C A S E 1



The Oily Bird CaseA broad judicial interpretation of standing allowed a

Dutch conservation society to file suit against a shippingcompany in order to recover costs from rescuing sea birdsinjured by the company’s oil spill in the North Sea, on thebasis of general environmental harm.


• Article 9(3)

Key issues

• Standing


Case study detailsCited case name: Borcea, Arrondissementsrechtbank,Rotterdam 15 March 1991 (civil court)

Parties involvedPlaintiff: Dutch Protection of Birds Society, Dutch NGODefendant: Borcea, Romanian shipowner

Background facts In 1988, the Romanian bulk carrier, Borcea, had an

accident in the North Sea causing a large oil spill.Consequently, coastal waters were heavily polluted andthousands of seabirds were beached, covered with oil. TheDutch Society for the Protection of Birds initiated an effortto care for and remove oil from the birds, spending consid-erable funds in the process.

Procedural history The Dutch Society for the Protection of Birds filed suit to

recover costs from Borcea for removing oil from the seabirds,as well as the operational costs of maintaining bird asylums.

The court granted standing to the Society on the basisthat preservation and protection of seabirds are commoninterests and, in that, such common interests are consistentwith the aims of the Society.

Final outcome The Dutch Society for the Protection of Birds and the

Romanian shipowner of the Borcea reached a settlement.


Access to justice techniquesJudicial suit to recover costs related to spill that caused

harm to the environment and without apparent individualharm to the Society.

Case study analysisIn 1994, two articles were introduced into the Civil

Code providing standing for interest groups (articles 305aand 305b, book 3). The necessary elements to establishstanding include: being a legal person, having relevantobjectives within the articles of association, and repre-senting individuals with similar interests.

Despite this, however, a party is typically eligible forcompensation only when it has demonstrated individualinterests or harm. In the instant matter, an NGO wassuccessfully conferred standing for the first time to seekcompensation for costs stemming solely from pureecological damage.


Netherlands Case 1



Contact

Janeke de VriesMinistry of Housing, Spatial Planning and EnvironmentRijnstraat 82515 XP Den HaagNetherlandsP.O. box 209512500 EZ Den HaagNetherlandsTel: +31-70-339-3939Public information service tel: +31-70-339-5050

The ‘Indispensable’ Pesticides CaseDelay tactics and “forum shopping” by the Dutch

government created numerous obstacles for NGOs seekingto challenge government decisions concerning pesticideregistration.



Key issues

• Standing


• Standard of review (forum shopping)

• Limited review of government decisions by civil courts

• Direct effect of European directives


Case study detailsCited case name: Indispensable Pesticides

Parties involved

Plaintiffs (collectively referred to as “NGOs”): Societyfor Nature and Environment; Zuid-HollandseMilieufederatie; Union of drinking water companies in theNetherlands (VEWIN); Drinking water company ofEuropoort; Water producing company of BrabantseBiesbosch; and Hydron Zuid HollandDefendant: The State of the Netherlands (ministers of

Agriculture, Nature and Fisheries; Housing, Public Spacingand Environment; Health, Welfare and Sports; and SocialAffairs and Employment)Third-parties (not officially taking part in theproceedings): Organisation for Agriculture in theNetherlands (users); and Phytosanitary Organisation in theNetherlands (producers)

Background facts In the Netherlands, the use and sale of pesticides are

not allowed unless they are registered under the 1962Pesticides Law. Registration is valid for up to ten years,after which the pesticide must be re-registered. To be regis-tered, a pesticide must meet a number of criteria laid downin the Pesticides Law, including environmental, user andpublic safety, and product quality requirements.

Since 1994, in the field of pesticides used in agriculture,the Dutch Pesticides Law has mainly been a vehicle forapplication of European Directive 91/414, which containsregimes for allowing pesticides to be marketed in EUmember states. During a transitional period lasting until atleast 2003, and probably until 2007, only general require-ments within the Directive apply to national registrationprocedures. Further, these requirements apply only topesticides containing “already existing” substances thathave not yet been reviewed on a European level.

“Already existing” pesticides are those that were on themarket before the directive became effective. The generalrequirements in the Directive are similar to Dutch law inthat they forbid member states from registering pesticidesif they do not meet environmental and other criteria.

This case concerned several “already existing” pesti-cides. As a consequence of earlier policies, a significantnumber of pesticides were eligible for re-registration in1999. To be re-registered, under both the EU directive andthe Dutch Pesticides Law, the holder of the pesticide hadto provide detailed information about the product. In addi-tion, the review was done de novo (i.e., as if it were a first


Netherlands Case 2

registration) and thus must again meet the criteriadescribed above.

During the review process, it became clear that pesti-cides containing ingredients listed among the 20 mostharmful active substances would not meet environmentalcriteria during the de novo review. Massive lobbying effortsby farmers’ organisations were initiated to keep thesepesticides on the market. Lobbyists insisted that thesepesticides were “indispensable” to agriculture and shouldbe retained. In the fall of 1999, at the request of the govern-ment, an effort was made to find a compromise.Stakeholders involved in settlement discussions includedfarmers’ organisations, pesticide dealers, producers, envi-ronmental NGOs, and drinking water companies. In theend, a compromise was not reached.

In January 2000, the registration period for these pesti-cides ended. Under pressure from Parliament, however,the government issued an emergency regulation extendingthe registration of pesticides containing 11 activesubstances deemed to be “indispensable” for farming.

Section 8 of the Pesticides Law gives all “interestedparties” the right of appeal against a decision based on thislaw. Under this provision, environmental NGOs areconsidered to be interested parties, and several groupsthus filed an appeal against the regulation.

Procedural historyIn the Netherlands, a decision by a government body

can usually be challenged in an administrative court. Theseadministrative courts are served by specialised judges.NGOs filed a complaint before the Board of Appeal forIndustry and Commerce and sought injunctive reliefenjoining officials from extending the registration of thepesticides in question. In July 2000, the Board granted reliefholding that, because the government regulation consti-tuted a registration of pesticides without a review of thenecessary criteria, the rule was a clear contravention of law.

In its turn, Parliament immediately enacted a statute inMarch 2001, explicitly allowing the pesticides at issue toremain on the market. This countermove was effectivegiven that the Dutch Constitution expressly forbids admin-istrative courts from reviewing statutes.36

Immediately afterwards, NGOs filed a civil action,summoning the State of the Netherlands to appear beforethe court in The Hague. NGOs asserted that the statutepassed by Parliament conflicted with European Directive91/414, and thus the State had committed a wrongful act,that is, a violation of the civil code. NGOs further requestedthat the President of the Court issue an injunction barringapplication of the law.

A hearing on injunctive relief was heard on May 17,2001, and the Court promptly denied relief on May 30, 2001.

On July 1, 2001, the vice-minister published the list ofindispensable pesticides considered registered. NGOs’attorneys took the view that this publication implied an

official decision about a concrete group of pesticides.NGOs filed an administrative appeal against these deci-sions, requesting a public review of the filed applicationsand questioning their completeness. In addition, NGOsrequested injunctive relief.

Final outcomeThe administrative court set a hearing date for August

9, 2001. The day before the hearing, the vice-ministerfound the applications incomplete. Thus, the most impor-tant condition in the emergency law for provisionalcontinuation of the registrations was not met.Consequently, the registrations were considered termi-nated immediately.

Some of these decisions were appealed to the courts bythe applicants, but no injunctions were requested, so thepesticides were effectively removed from the market. Sofar, litigation started by the applicants was unsuccessful.

The main complaint was withdrawn in December2001, as there was no longer a concrete interest to justifyfurther litigation.

There was also no more need for a civil lawsuit as everyfuture decision that would be taken with respect to “indis-pensable” pesticides could henceforth be challenged in anadministrative court of law, which could then also decideabout the legality of the law. The cost of litigation madepursuing this case unattractive in a civil court for principle.

After the enormous effort involved in designing anemergency law and guiding it through Parliament, incomparison to the meagre results, the government willprobably not try a second time.


Access to justice techniques In light of limited prospects before the Civil Court in

The Hague, NGOs’ attorneys focused on application of theemergency pesticide law. Under the law, “indispensable”pesticides would be considered re-registered only when a“complete” application for registration had been filed. Tobe “complete,” the application had to contain proof ofindispensability and sufficient data for evaluation. In addi-tion, the vice-minister of Agriculture had to publish thoseregistrations assumed to be complete and thus able to becontinued in the official gazette.

Case study analysisIn seeking to enact emergency measures at odds with

Dutch and most probably European law, Dutch officialshad reason to stay out of court as long as possible, or atleast conduct “forum shopping” in order to delay proceed-




ings. Under Dutch law, forum shopping is a logical tacticgiven that there is a difference in the depth of the reviewconducted by administrative courts and civil courts.

Administrative courts, led by specialised judges, aremuch more at ease in the field of law where they are oper-ating. Case studies demonstrate that these courts are moreaggressive in criticising government decisions and evalu-ating policies, facts and circumstances. Conversely, it israther exceptional for civil courts to hear a case chal-lenging a government decision and therefore it is muchmore reluctant to undo government decisions. In fact, civilcourts have developed a practice of “marginal” review ofgovernment decisions. Marginal review means that a deci-sion of a government body is only overturned if it ismanifestly unsound. For example, if the government tookinto account a certain interest in making a decision orissuing a regulation, an explanatory note within the regu-lation stating that interest was considered is enough toconvince the court that the government’s decision-makingwas reasonable.

A civil court’s unfamiliarity with some issues andnarrow standard of review make injunctive relief difficultto obtain. Typically, injunctive relief is granted only when

the outcome of the main procedure is fairly predictable.Thus, in a complicated case such as the instant matter, civilcourts will be very reluctant to grant relief.

In civil court legal representation is mandatory,requiring the services of an attorney. In addition, court feesmay be significant and, when combined with attorneys’fees, parties are required to pay significant costs forbringing a lawsuit. Moreover, NGOs receive no financialsupport for the cost of legal actions and fee shifting is notan option.

Conversely, in administrative procedures, court feesare fixed at EUR 200 and there is no risk of additional costs.

Contact

Joost RuttemanZuid-hollandse milieufederatieG.W. Burgerplein 53021 AS RotterdamThe NetherlandsTel: +31-10- 476-5355Fax: +31-10-477-5562E-mail: [email protected]

N E T H E R L A N D S C A S E 2



The Highway and Housing CaseLocal citizens used the courts to overcome administra-

tive hurdles to access to information and publicparticipation in their efforts to stop a highway from beingbuilt near their homes.


• Articles 9(2), (3) and (4)

Key issues

• Fair, equitable and timely access to courts

• Standing

• Judicial review of public participation in decision-making

• Actio popularis

• Aggregation of claims

• Adequate and effective remedies

Case study detailsCited case name: Highway Development Near MuchoborMaly Housing Development, Warsaw, Poland

Parties involvedPlaintiffs: Residents of the Muchobor Maly Housing Estate Defendant: City of Warsaw

Background facts In 1997, Warsaw officials approved building and land

management conditions as a preliminary step to issuing

construction permits for the development of a highwayadjacent to the Muchobor Maly Housing Estate in Warsaw.Anticipating an increase in traffic and home construction,existing residents filed individual complaints, seeking judi-cial review of the city’s decision and a halt to construction.

Procedural historyResidents of the housing estate separately filed peti-

tions to the Municipal Revocatory Council requesting anadministrative proceeding concerning the building andland management conditions for the highway plan. Thecouncil initially denied these petitions on the basis thatan individual must be a necessary party to theproceeding or have a legal interest to have standing.37

According to the council, living in the nearby housingestate was not enough.

Several residents filed a complaint before the SupremeAdministrative Court (NSA), asserting that the council’sinterpretation of the Polish administrative procedure ruleswas too narrow. The court agreed and ordered the councilto determine which parties had a right to participate in offi-cial proceedings on the basis of its ruling. Subsequently,the council stated that inhabitants living closest to theproposed highway site had a sufficient legal interest andthus were necessary parties.

Those residents with standing separately filed newcomplaints before the Municipal Revocatory Council,asserting that the city’s approved building and landmanagement conditions should be declared invalid due tothe failure to involve nearby inhabitants in the approvalproceedings. Claimants also contended that the city’senvironmental impact statement (EIS) was inadequate,based on its failure to meet minimum requirements of the1995 EIS protocol of the minister of environment.Shortcomings of the EIS included incomplete data, afailure to address key environmental factors, a lack ofinquiry into alternate plans, and failure to address meansof minimising environmental damage.


Poland Case 1



The council ruled in favour of the city, upholding thedecision to approve construction. In turn, the residentsappealed the decision to NSA. Attempting to file a singleappeal for the multiple claims, attorneys for the residentsdrafted a single brief and affixed the signatures of the resi-dents to the document. Under Polish law, however, agroup of individuals cannot be treated as one party or as aclass of plaintiffs. Only legal persons or the members offormal organisations may be treated as single subjects. Assuch, each resident had to appeal separately.

On September 5, 2000, NSA again ruled in favour of theresidents, holding that the council’s approval of the city’sbuilding and land management conditions was erroneousgiven the obvious shortcomings of the city’s EIS.

Final outcome The appeals court was the final ruling in this matter.

However, authorities were continuing construction.Under Polish law, overturning the city’s building and landmanagement conditions does not automatically negatebuilding permits issued in reliance on the approvedconditions. Each building permit must be appealed sepa-rately and as long as the building permit is in force,construction is legal.

Related actions and campaignsResidents organised an informal protest committee and

conducted numerous high-profile events near theproposed construction site. In addition, the committeerequested that the EIA Commission of the Ministry ofEnvironment inspected the quality of the city’s EIS — anessential step in using the inadequacy of the EIS as a legalargument. The committee also researched and suggestedalternative locations publicly and before the court.

Access to justice techniquesThe residents’ only recourse was to:

• establish standing as necessary parties with a legalinterest in the matter; and

• seek judicial review of the city’s decision and the pro-cedures followed in making that decision.

Case study analysisIn environmental law disputes, it is common for a

number of individuals to have common claims against asingle party. That the individual residents in this case wereseparately able to afford and secure the services of attor-neys, file lawsuits and lodge appeals is a rarity in situationssuch as this. Where different citizens share a common legalinterest in a matter, legal expenses are all too oftenextreme and will deny some individuals within that groupthe opportunity to seek redress in court. Class action suits,where individuals are joined together as one party byvirtue of subject matter or legal claim, would go far inallowing individual citizens to pool together funds andefforts in seeking justice. For the benefit of the court, more-over, the principle of efficient proceedings requires thatmultiple appeals should be submitted as a single documentand that the court issue a single ruling applicable to all.

Issues of fairness, applicability and damages can easilybe addressed by uniform rules. For instance, rules quali-fying individuals for membership based on subject matterand common issues of law would ensure that consolida-tion is uniform and fair to the defendant. Further, classaction could be limited to a certain group of administrativeor civil matters, where multiple plaintiffs seeking relieffrom a single defendant is common. Finally, rules of courtcould also regulate the allocation of damages and reliefamong the multiple parties.

This case also illustrates the importance of filing acomplaint in court to challenge administrative proceedingsdesigned to limit public participation. In filing a complaint,residents compelled the court to examine the city’s prac-tices in deciding who among the public has a right toparticipate in proceedings. The resulting change repre-sented a significant victory in the effort to improve publicparticipation in Poland.

Contact Kamila TarnackaEnvironmental Law Center Uniwersytecka 1 50-951 WroclawPoland Tel: +48-71-341-0234Fax: +48-71-341-0197E-mail: [email protected]

The Water Works: A Case in ProgressThe benefit of seeking judicial review is illustrated as

an NGO and several government agencies came togetherto challenge a massive project in a case raising publicawareness of access to justice issues and establishing avaluable precedent for environmental law.

Relevant Aarhus provisionsArticle 9(2), (3) and (4)

Key issues


• Access to judicial review of government decisions

• Case strategy

Case study detailsCited case name: Gudkov et al. v. State ConstructionCommittee of the Russian Federation

Parties involvedPlaintiffs: Deputy of the Russian Federation State DumaGudkov; Deputy of Moscow Oblast Duma Alekseev;Deputy of Moscow Oblast Duma Tebin; Mashkin andShevchenko, residents of Moscow Oblast; Regional PublicCenter for Human Rights and Environmental Defense,environmental NGODefendant: State Construction Committee of the RussianFederation (Mosoblcomunstroy)

Background facts In 1995, Moscow officials proposed construction of a

massive water supply system involving construction

throughout Moscow and the surrounding region. Based onits preliminary environmental impact assessment (EIA), theMoscow Oblast Environmental Protection Committeerejected the proposal stating that the project was environ-mentally dangerous and economically unjustified.

However, the proposal received considerable supportfrom isolated government agencies and commercial anddesign companies, and a massive lobbying campaignensured that the project continued at least through thedesign stage. As a result, more than RUB 3 million (USD150,000) in public funds was spent on project design.

Protests against the project were widespread. Moscowresidents, local officials, NGOs and scientific experts allvoiced opposition. Residents near the Oka River, an areathat would be significantly affected by the project, werenot informed of project details nor invited to participate indecision-making. In light of this and the broad opposition,the Moscow Oblast Duma (Parliament), with the support ofthe Moscow Oblast Prosecutor’s Office, initiated an inde-pendent investigation in 1999, into the legality of the proj-ect and the RUB 3 million that was spent.

Despite this, RF Goscomecologia, the agency chargedwith issuing permits for the project to commence, decidedin April 2000, that development of the project could con-tinue, allegedly amid intense pressure from interestedhigh-ranking government officials.

At the end of 2000, the Duma’s investigation discov-ered several legal violations in development of the project.It also found that budgetary funds were spent illegallythroughout the design stage. In addition, several significantchanges to the scope and design over the past severalyears warranted a new EIA.

Despite these concerns, RF Goscomstroy approvedpermits in March 2001, for construction allowing the proj-ect to move forward.

Procedural history The Regional Public Center for Human Rights and

Environmental Defense (RPC), an environmental NGO,filed a complaint seeking judicial review of the decision by


Russia Case 1



Goscomstroy to allow the construction of the project tomove forward. Joining RPC as co-plaintiffs in the suit werea number of federal and local authorities opposed to theproject. Plaintiffs alleged that the approval of the projectwas in violation of several environmental statutes.38

Defendants asserted that, in approving the project, theydid not violate citizen rights, and that they acted in com-pliance with the Governmental Decree on GovernmentalExpertiza, a guidance document on construction matterswithout the force of law. As such, approval was an actionnot covered by law and therefore was not actionable.

A hearing date was scheduled for June 2001, and thenfor October 2001, but by August 2002, the case was still incourt, as several expert examinations were required by thecourt before making a final judgement.

RPC attorneys requested interim injunctive relief at thefirst preliminary hearing, seeking a ruling that constructionshould be halted until a final court decision. The motionwas rejected by the court.

Final outcome A decision was still pending in August 2002.

Related actions and campaignsApart from the above action, the Moscow Oblast

Prosecutor started an investigation that was still ongoing inAugust 2002. The prosecutor had received numerous com-plaints and affidavits from affected residents, regionalNGOs and deputies of the Moscow Oblast Duma.

NGOs engaged in a mass media campaign and consis-tently filed complaints to the federal parliament.Information was gathered and disseminated to residentsand water users of the Oka River region.

Access to justice techniques Understanding the Russian judiciary, lawyers for RPC

decided to divide the various demands and argumentsamong the multiple plaintiffs and file them as separate

complaints. The intention was that, if the judge rejectedsome of the complaints, others would still be in court.

In addition, not all documents to be used as evidencewere submitted with the complaints. Traditionally, defen-dants have taken advantage of the time between submis-sion of documents and the hearing to influence the courtin not accepting various materials. RPC submitted docu-ments only a few at a time, at each hearing, in order to min-imise the defendant’s ability to use influence and power tocorrupt the court’s decisions. Similarly, a strategy wasadopted to make motions to call on expert testimony at thehearing itself (rather than in advance) in order to avoidundue influence on witnesses.

Case study analysisThe case provided an opportunity to establish prece-

dents for the treatment of legislative provisions on EIAs,public participation, and access to information and justice.Further, because government officials from different levelsof government were joined in the case with environmentalNGOs, the case was expected to have considerable politi-cal impact and to raise awareness of environmental issueswithin the body politic. It was also expected to contributeto efforts to increase public awareness. The case’s highprofile will generate attention on important issues, includ-ing the environmental impact of government decisions,inadequate environmental citizen rights, poor environ-mental law implementation and enforcement, and limits onaccess to justice on matters both large and small.

Contact

Olga Razbash, Attorney at Law and ChairpersonRegional Public Center for Human Rights andEnvironmental DefenseMerzlyakovsky lane, 7/2, #35121069 MoscowTel/Fax: +7-095-290-5916 E-mail: [email protected]

The Nikitin CaseThis case is a judicial saga in which the rights of an

individual to access and publicise environmental informa-tion collided with lingering traditions of excessive govern-ment control and secrecy — a tale of both the Russian judi-ciary’s progress in ensuring justice and the long road thatstill lies ahead.


• Article 2(3), 3(8) and 9(4)

Key issues

• Fair, equitable and timely procedure

• Judicial review of classification of information (nation-al defence or public security exemption)

• SLAPP suits

• Independent judiciary

Case study detailsCited case name: Russian Federation v. Nikitin

Parties involvedPlaintiffs: Office of Prosecutor General of the RussianFederation; Federal Security Bureau, Russian Federation(RF)Defendant: Aleksandr Nikitin

Background factsOn October 5, 1995, the Federal Russian Security Police

(FSB), the former KGB, raided the office of Bellona, aNorwegian NGO, in Murmansk, and confiscated the draft

version of Bellona’s report on the handling of radioactivewaste by the Russian Northern Fleet. One of the co-authorsof the report, Aleksandr Nikitin, and several other RussianBellona employees and contacts were brought in for inter-rogation. Nikitin’s passport was confiscated. The materialsprepared by Nikitin as a part of the report on the RussianNorthern Fleet contained information about the radiationhazards posed by the Northern Fleet submarines and itsrun-down nuclear waste storage sites.

Procedural history Nikitin, a former captain of the Russian Navy, was

arrested on February 6, 1996, by the FSB and accused ofhigh treason in the form of espionage.

According to the FSB, Nikitin cooperated with andaccepted payment from the Norwegian environmentalorganisation Bellona to gather “secret and top secret data”regarding the Navy’s nuclear-powered submarine fleetand transferred this information to Bellona’s representa-tives. FSB further charged that Nikitin’s activities wentbeyond the scope of an environmental organisation, andthat these activities had considerably impaired Russiandefence capabilities.39

In his defence, Nikitin maintained that the informationwas already publicly available.

Brought to FSB’s pre-trial detention centre in St.Petersburg, Nikitin was refused the lawyer of his choice,Yuri Schmidt, unless he agreed to abstain from travellingabroad for five years, and to have his telephone tapped foran unlimited period of time.

The Russian Constitutional Court ruled on March 27,1996, that FSB’s conditions violated articles 48 and 123(3)of the Russian Constitution. On March 29, Yuri Schmidtwas appointed as Nikitin’s lawyer. When studying the casefile, Schmidt discovered that the charges against Nikitinwere based entirely on secret and retroactive decrees ofthe Ministry of Defence.

While Nikitin was kept in custody, a number of high-


Russia Case 2

ranking officials within the Russian procuracy and the FSBstated publicly during the summer of 1996 that Nikitin wasa traitor who had damaged Russia’s defence capability.Since he had not confessed, he was accused of “activelycounteracting the establishment of the truth.”

In September 1996, Amnesty International adoptedNikitin as the first Russian prisoner of conscience since thedownfall of the Soviet Union. Amnesty International assert-ed that the case was not based on national security interests.

FSB declared its investigation complete and officiallycharged Nikitin with treason through espionage, disclosureof state secrets, and abuse of military travel orders. Thiswas the first charge of treason brought in Russia since thedissolution of the Soviet Union. Neither Nikitin nor hisattorneys were given access to the military decrees uponwhich the charges were based.

Nikitin was released on December 14, 1996, from cus-tody by order of the deputy prosecutor-general of Russia,Mikail Katushev, and placed in “city arrest,” which meantthat he could not leave St. Petersburg. Katushev statedpublicly that there was no evidence of espionage but thatcontinued investigation was necessary. The director of theFSB, Nikolay Kovaliov, disagreed with Katushev’s findings.

Katushev ordered the FSB in January 1997, to evaluatethe case once more. In particular, Katushev stated that thefollowing issues had to be resolved:

1) Charges should be based on existing law rather thansecret and retroactive decrees.

2) It should be ascertained whether the information pro-vided to Bellona was in fact publicly available.

FSB reasserted the charges against Nikitin onSeptember 9, 1997, based on the invalid decrees. In deter-mining whether the data had been previously made pub-lic, the FSB evaluated only a small number of possibilitiesand ignored many possible public sources of the informa-tion.

On April 21, 1998, the Russian prosecutor-general stat-ed that charges against Nikitin based on the decrees atissue were contrary to the Constitution and ordered theFSB to drop its charges related to the alleged abuse of mil-itary travelling orders.

The FSB presented yet another set of charges on May8, 1998, in which all references to the illegal decreeswere removed.

The FSB presented its indictment on June 29, 1998, andforwarded the case to the St. Petersburg City Court.

On September 13, 1998, the City Court announced atrial date of October 20, 1998. The court declared that thecharges related to abuse of military travel orders werewithout merit.

On the eve of the trial, the presiding judge, SergeiGolets, gave Nikitin and his defence team access to thesecret and retroactive decrees. The decrees had arrived

from the Ministry of Defence the day before. The court stopped the trial on October 29, 1998, and

ordered additional investigation. According to the court,the alleged charges were so vague that Nikitin would bedeprived of his right to defend himself with legal meanswithout more information and legal assertions supportingthe charges. The court ordered expert evaluations of thealleged state secrets in the Bellona report and all possiblepublic sources of the information. In addition, the courtordered a new evaluation of the alleged damage caused toRussian national security.

On appeal, the Supreme Court’s Collegium ofCriminal Cases confirmed the order of the City Court onFebruary 4, 1999, and returned the case to the FSB foradditional investigation.

On April 20, 1999, the Russian Constitutional Courtruled that it is a violation of an individual’s constitutionalpresumption of innocence to remand cases for additionalinvestigation when the prosecution has not been able topresent sufficient evidence for a guilty verdict. In suchcases, the defendant should be acquitted.

Nevertheless, the FSB presented new expert evalua-tions on June 10, 1999, which like the previous expert eval-uations, were conducted by the 8th Department of theRussian General Staff. The experts’ conclusions on the statesecrets in the report were the same as before. However, theamount of damages claimed was reduced from approxi-mately USD 1 million to USD 20,000.

The FSB presented its new charges on July 2, 1999, sim-ilar to the previous ones and on August 28 presented itsindictment and forwarded the case to the St. PetersburgCity Court. Since the indictment quoted the parts of theBellona report allegedly containing state secrets, theindictment was stamped secret. This considerably hin-dered the work of the defence.

The trial started in St. Petersburg City Court onNovember 22, 1999. The presiding judge was again SergeiGolets. By this time, the case was subject to considerableinternational and national interest.

In December 1999, while the trial was taking place, St.Petersburg TV ran a series under the vignette “TracingBellona,” where both Nikitin and Bellona were accused oftaking part in espionage activities. Inside the court room,an expert of the 8th Department of the General Staff admit-ted that its evaluation of whether state secrets appeared inthe Bellona report was based, again, solely on the secretand retroactive decrees.

The Court found that no crime had been committedand acquitted Nikitin on December 29, 1999. It pointed outthat the information in the Bellona report did not containstate secrets and declared that the indictment was a blatantviolation of the Constitution since it was based on secretand retroactive decrees.

The prosecution appealed the decision on January 5,2000, to the Supreme Court’s Collegium of Criminal Cases,




claiming that it was based on an incorrect application ofthe law. It demanded that the case be remanded to the CityCourt and presided over by other judges.

The Supreme Court’s Collegium accepted the case onMarch 29, 2000, but postponed the hearing at the requestof the prosecutor-general, who requested to participate inthe case.

On appeal, the prosecution substituted its initial pleaon April 17, 2000, with a request that the matter be sentback to the FSB for additional investigation so that the “vio-lations of the acquitted Nikitin’s constitutional rights[could] be corrected.” The Supreme Court’s Collegiumrejected the prosecution’s plea and affirmed the CityCourt’s acquittal.

Nikitin received a new passport on May 18, 2000, replac-ing the one that had been confiscated on October 5, 1995.

On July 19, 2000, the Presidium of the Supreme Courtannounced that it would hear the prosecutor-general’sappeal against the acquittal on August 2, 2000. The defencehad not been informed of the prosecution’s application forappeal. On this date, the Presidium of the Supreme Courtpostponed the hearing until September 13, 2000. After abrief court hearing, the chairman of highest legal authorityof the Russian Federation, Mr. V. Lebedev, affirmed theacquittal of Nikitin on September 13.

Final outcome After almost five years, city arrest and considerable

expense, the case of Nikitin was finally settled.

Related actions and campaignsThe authorities subsequently launched a tax investiga-

tion of the financial contributions made for Nikitin’sdefence. This was still ongoing in 2002.

Access to justice techniques It is difficult to refer to access to justice techniques in

this case as Nikitin was an unwilling victim, persecuted forrevealing embarrassing but truthful facts about an extreme-ly dangerous environmental situation in the Arctic.

Case study analysisIn order to defend himself, Nikitin made several

appeals on the basis of the Russian Constitution that setenormously significant precedents and eventually resultedin his acquittal. While his own deeds were heroic and hisstrength formidable, all would have been lost if not for theequal fortitude of the judges who refused to accept thepolitical directions of the FSB and those behind it. Theindependent judgement of the courts, based on the rule oflaw, was a testament to the changes in the legal system ofthe Russian Federation and by extension to other parts ofthe former Soviet Union. Nevertheless, other cases (such asthe Pasko Case), which followed Nikitin, have demonstrat-ed that the process of judicial reform in the RussianFederation is a long one with many bumps along the way.

While the FSB might have lost the case, it did succeedin sending a message to those who might wish to spreadother truths about risks to public health and the environ-ment over which those in power are responsible.Exercising rights to information and participation may con-tinue to be fraught with peril in some parts of Europe.

Moreover, a further question was left unresolved by theNikitin Case. While the FSB eventually lost the case —something that would have been unthinkable a generationago — there was no backlash against those responsible forsuch a waste of time, energy and resources. Those abusingthe justice system — the FSB and those behind it — notonly went unpunished, but other parts of the state appara-tus — the tax authorities — were mobilised to continue topersecute Nikitin after the main case failed.

Contact

Aleksandr NikitinBellona FoundationP.O. Box 2141Gruneriokkka0505 OsloNorwayTel: +47-2-323-4600Fax: +47-2-238-3862Website: www.bellona.no

R U S S I A C A S E 2



The Shrinking ParkCitizens seeking to protect a national park filed multiple

motions for injunctive relief and sought to overturn relatedcity government decrees given a failure to provide citizenaccess to relevant decision-making and information.


• Article 9(3) and (4).

Key issues


• Review of public participation in specific decision-making


• Independent judiciary


Case study detailsCited case name: The Shrinking Park

Parties involvedPlaintiffs: Residents of a district near a natural and historicsite (Sosnovskih, Startcev and Koroleva)Plaintiffs’ representation: Regional Public Center forHuman Rights and Environmental Defense; Committee toProtect Neskuchnyi Sad (NGOs)Federal Prosecutor (as required by the Federal Law onProsecutor in Russian Federation)Defendants: Moscow City Government

Background factsIn 1978, the Moscow City Council granted protected

status to the historically and biologically significant park,Neskuchnyi Sad. Under national law, seizure of land with-in designated protected areas is strictly prohibited unlessapproved by the federal government. In 1994, withoutsuch approval, the Moscow City Government issued adecree decreasing the territory of Neskuchnyi Sad. Landremoved from protected status was then transferred to theland development company, Compromstroy Ltd.

Compromstroy intended to construct two large build-ings immediately adjacent to nearby residential homes andremove more than 200 old growth trees from the sur-rounding park lands. Despite the apparent impact to near-by residents and the local environment, Compromstroy didnot conduct public hearings or discussion, nor did it informresidents from nearby apartments about constructionplans. In addition, no environmental assessment was con-ducted by the government, as required by law.

Despite large-scale public protests, the Moscow CityGovernment allowed construction to commence.Ultimately, 230 old growth trees were removed, a chil-dren’s playground demolished, and a huge concrete fenceerected around the construction site.

In response, the Committee to Protect Neskuchnyi Sadwas established and several environmental NGOs, includingthe Moscow Ecological Federation, Russian Socio-EcologicalUnion, Congress of Russian Communities and the RegionalPublic Center For Human Rights and EnvironmentalDefense, developed a coalition aimed at helping citizens toprotect their constitutional environmental rights and preventfurther degradation of Neskuchnyi Sad.

Procedural historyIn 1995, NGOs, on behalf of nearby residents, filed a

lawsuit against the Moscow City Government before theMoscow City Court. In their complaint, NGOs asserted thatdecrees allowing for land transfer and construction violat-ed several citizens’ rights, including the right to:


Russia Case 3

• a healthy environment;

• timely and adequate environmental information; and

• public involvement (participation) in environmentaldecision-making (since no EIA or State EnvironmentalExpertiza procedures were conducted as requiredunder the Federal Law on Environment, the 1995Expertiza Regulation, and the 1994 Regulation on EIAProcedure).40

NGOs also submitted a motion for injunctive reliefseeking to halt construction until the case was resolvedby the court. In seeking injunctive relief, NGOs assertedthat construction was an environmentally dangerousactivity that would render moot the relief sought ifallowed to continue until court resolution. The courtrejected the NGOs’ motion. In 1997, the Moscow CityCourt rejected the complaint.

Citizens then appealed to the Supreme Court of theRussian Federation. The Supreme Court remanded the caseto a second court within the Moscow City Court, citing thebias of the initial presiding court, and noting that the park’sdesignation as a protected area had not been consideredby the lower court.

In 1999, upon a rehearing, NGOs resubmitted theirmotion for injunctive relief. The second Moscow City Courtrejected the motion and the complaint on rehearing. Again,the Russian Supreme Court remanded the case back for athird hearing.

In December 2000, the third court within the MoscowCity Court to hear the case ruled in favour of the NGOs,acknowledging a violation of citizens’ environmental rightsand interests, and stated that the two Moscow GovernmentDecrees of 1994 and 1997 were illegal.

In April 2001, the Russian Supreme Court rejected anappeal brought by Compromstroy.

Final outcomeThe court decision was widely disseminated in the

mass media and on the Internet. After the final court ruling,the Moscow City Government issued decrees that abol-ished the prior decrees transferring land and permittingconstruction. The city also promised that the constructionsite will be cleaned up and 230 trees planted to replacethose removed. Involved NGOs and citizens continued tomonitor the city to ensure that the promises were kept.

Despite a favourable ruling halting construction, thecourt rejected a requested order that the Moscow CityGovernment should be explicitly forbidden from repeatingsuch violations of legislation and citizens’ rights. Moreover,no compensation was awarded for moral damages causedby seven years of lengthy court litigation, damaging con-struction and the government’s failure to comply with citi-zens’ constitutional rights.

Related actions and campaignsAt the beginning of the third court hearing before the

Moscow City Court, lawyers of the Regional PublicCenter submitted an additional lawsuit on behalf of a cit-izen to cover moral damages caused to him by the activ-ity of the defendant. This lawsuit was to be heard sepa-rately by the Moscow City Court, but as of August 2002,it was not yet settled.

In addition, four additional complaints were filedbefore the lowest district courts of Moscow against otherrelated permits issued by different government agencies,including the permit to take and manage the piece of land,to conclude a 49-year lease, to cut 200 old growth trees,and to dig the basin and start construction works. All ofthese complaints were decided in favour of plaintiffs by thedistrict courts.

Access to justice techniquesMost importantly, a coalition of citizens and environ-

mental and political NGOs was established as a means ofpooling together resources to challenge the governmenton an issue of common concern. In doing so, the coalitionhad greater access to expert research (architectural, legaland scientific) and expert testimony on special matters,including land law precedents, management and construc-tion activity, and design documentation.

In litigation, NGOs employed a procedural form ofcomplaint (according to chapter 24-1 of the RF CivilProcedural Code) in order to expedite consideration oftheir claims. Further, at each stage of court hearings (espe-cially at the very first stage), motions for injunctive reliefwere repeatedly submitted. In addition, all motions weresubmitted in writing (pursuant to Russian civil procedure,motions can be presented orally at the hearing). In doingthis, the court’s rejection of the motion must also be in writ-ing and thus included in the case file for purposes ofappeal. Such a technique provided an opportunity to edu-cate judges on environmental and human rights legalissues — still largely unknown to judges at the time.

Finally, NGOs used precedent established by positivedecisions on similar matters before other lower district courts.

Case study analysisSeveral obstacles to effective implementation of access

to justice requirements as would be provided by theAarhus Convention had to be overcome. First was corrup-tion and the ignorance of public authorities about environ-mental laws. In order to ensure transparent judicial pro-ceedings, NGOs submitted their motions in writing andsupported their claims with existing precedent and thor-ough expert evidence. In addition, NGOs strived to main-tain personal contacts with “friendly” officials in order toobtain the necessary documents concerning borders of thepark from city archives.




Under the Russian Civil Procedural Code there is no“contingency” fee structure by which a plaintiff can foregopayment to an attorney until the lawsuit has been resolved.Further, Russia is a “loser pays” jurisdiction in which a win-ning party can have its costs recovered by the losing party,but only when completely successful on the merits of itsclaim. This represents a substantial disincentive to citizensto enforce their environmental rights and a significantfinancial burden that prevents citizens from acquiring qual-ified professional legal service.

In response, lawyers of the Regional Public Center forHuman Rights and Environmental Defense represented cit-izens pro bono, covering litigation expenses through fundsfrom a project supported by the MacArthur and FordFoundations. However, without state financial support toensure capacity-building of civil society, such representa-tion of citizen interests remains rare.

In all, NGOs submitted five written motions seeking

injunctive relief. That each motion was rejected signals thecourts’ continued hesitation to interfere in areas of govern-ment influence before a final court decision.

Contact

Olga Razbash, ChairpersonRegional Public Center for Human Rights and Environ-mental Defense Merzlyakovsky lane, 7/2, #35121069 MoscowRussian Federation Tel/Fax: +7-095-290-5916 E-mail: [email protected]

Olga Davydova, Co-ChairpersonRegional Public Center for Human Rights andEnvironmental Defense Tel: +7-095-183-1967

R U S S I A C A S E 3



The Silver PlateA local resident participated in enforcement actions

against a bakery operating without necessary approvals.Nevertheless, the bakery owners continued to operatewhile appealing several administrative decisions.


• Article 9(3)

Key issuesDirect enforcement

Case study detailsCited case name: Srebreni Tanjir v. Secretariat forInspection Affairs

Parties involvedPlaintiff: Srebreni Tanjir (The Silver Plate), a bakeryDefendant: Secretariat for Inspection Affairs, NisThird-party intervenor: Pera Peric, resident

Background factsA company started bakery operations and only after-

wards initiated the procedure for collecting the relevant envi-ronmental, health and other approvals. On July 20, 1999, arequest was submitted to establish whether environmentalprotection requirements were met for the bakery operations.On August 4, Pera Peric submitted a request to be recognisedas a party to the dispute. The bakery was situated in the samebuilding as Peric’s apartment (only a partition-wall separatedthem). On August 9 and 23, two inspections of the premiseswere carried out. In the meantime, on August 20, Peric wasgranted administrative standing.

On September 8, the Secretariat for Inspection Affairsissued a decision prohibiting the bakery activities on thebasis of exceeding noise limitations. The company appealedagainst the decision to the Ministry of EnvironmentalProtection (MOEP). On September 25, the bakery wasinspected again, and the inspectorate closed it down.

The company owners thereafter obtained a report onthe bakery’s acoustic activity by an authorised expert,which confirmed that the noise from the bakery was with-in the permitted limits.

Procedural historyOn December 20, 1999, the MOEP rejected the appeal

as unfounded in the light of the factual situation at the timewhen the first-instance decision was made. The companyowners immediately initiated an administrative appealbefore the Supreme Court of Serbia challenging the legali-ty of the second-instance decision. The Supreme Courtaccepted the complaint filed by the company and onOctober 18, 2000, issued its decision annulling the decisionof the MOEP in part on the basis of the later acoustic activ-ity report obtained by the bakery owners.

Upon remand, the MOEP noted certain defects andcontradictions in the documents. In particular, the reporton the acoustic activity of the bakery differed significantlyfrom a previous report prepared by another authorisedorganisation showing the volume of noise to be wellbeyond the permitted limits (48.5 decibels). In light of thissituation, the MOEP decided on June 22, 2001, to engage athird authorised organisation to measure the level of noisein the environment.

The results of the new measurement concluded thatthe noise level exceeded the legally allowed level duringthe second phase of the baking process. Further investiga-tions revealed that the company did not have the appro-priate building construction and functioning permits.Based on these facts, the MOEP once again rejected thebakery’s appeal against the decision of the Secretariat for


Serbia and Montenegro Case 1



Inspection Affairs.This decision was again appealed by the bakery to the

Supreme Court.

Final outcomeOnce again, the Supreme Court accepted the complaint

and annulled the decision of the MOEP. In August 2002, anew decision of the MOEP was still expected.


Access to justice techniques A neighbouring resident of a noisy bakery participated

in an action to inspect the bakery’s operations and inadministrative procedures to enforce applicable law. Thebakery, in turn, presented opposing scientific analyses andsuccessfully challenged the administrative decisions incourt. Parties used reconsideration by the same authority,administrative appeal and judicial appeal mechanisms.

Case study analysisThe Law on Enterprises (Official Gazette of FRY, No.

29/96), article 18, stipulates that a company may start oper-

ations, perform operations and change the conditions of itsoperations when the competent authority issues a decisionto the effect that it has fulfilled the requirements concerningtechnical equipment and facilities, safety at work, and pro-tection and improvement of the environment, as well asother prescribed requirements. Accordingly, The SilverPlate was obligated to obtain, prior to starting operations, adecision from a relevant authority that environmental pro-tection requirements had been met. However, establishingthe real facts regarding the noise level proved to be difficultdue to a lack of enforcement mechanisms. Other certifiedexpert institutions had to be engaged to conduct measure-ments. This resulted in a “war of experts” and substantialopportunities for the court to choose whom to believe.

Contacts

Dragoljub TodicTel: +381-11-311-4240 x2421Fax:+381-11-142-564E-mail: [email protected]

Milica Durac, Legal ExpertMinistry for Protection of Natural Resources andEnvironment of SerbiaIvana Ribara 91BelgradeTel: +381-11-361-6368

The Star CafeTenants of a building with a noisy cafe initiated enforce-

ment actions to apply noise regulations through their com-plaints to appropriate authorities. The appeal to the courtsystem by the cafe owner significantly delayed action.



Key issues


Case study detailsCited case name: Sloboda Co. v. Ministry of Environ-mental Protection of Serbia

Parties involvedPlaintiffs: Sloboda (Freedom), a catering companyDefendants: Department for Utilities, Housing Affairs andEnvironmental Protection of the Indjija MunicipalityThird-party intervenors: Tenants Assembly of the build-ing in Bloc 63

Background factsSloboda operated Café Zvezda (Star) on the ground

floor of a building in Bloc 63, facility 8 in IndjijaMunicipality. The tenants of the building complainedabout excessive noise coming from the cafe.

Procedural historyOn April 8, 1997, an inspector from the Department for

Utilities, Housing Affairs and Environmental Protection of

the Indjija Municipality went to the cafe and establishedthat the source of the noise was a Philips cassette recorder.Moreover, the cafe could not produce documents indicat-ing that the noise level was in accordance with the rules onthe permitted noise level in the environment (OfficialGazette of the Republic of Serbia, no. 54/92).

On May 21, the inspector ordered Sloboda to measurethe noise levels. As nothing was done to carry out theorder, the noise was forcibly measured on September 19,by the inspector. It was established that the noise levelexceeded the permitted level. On November 26, theinspector issued a decision to undertake noise protectionmeasures and to prohibit future operations of the cafe.Sloboda appealed against this decision to the Ministry ofEnvironmental Protection (MOEP).

On December 17, Sloboda had the noise level meas-ured again by another authorised institution. Measurementwas conducted only outside the premises, as the tenantsrefused to allow noise measurement inside the buildingbecause no noise protection measures that had beenordered, had been undertaken. The measurement showedthat the noise level was below that permitted during day-time. On December 22, the inspector reversed his earlierdecision banning the cafe’s operation. The TenantsAssembly appealed this decision to the MOEP.

On January 22, 1998, the MOEP rejected the cafe’sappeal against the decision to stop the operation of thecafe and accepted the tenants’ appeal against the later deci-sion of the inspector certifying that environmental protec-tion conditions were fulfilled. The MOEP annulled thisdecision and sent the case back for review in order toestablish the facts of the situation.

On January 25, 1998, Sloboda initiated an administrativedispute before the Supreme Court of Serbia. On September16, 1998, the Supreme Court accepted the appeal andannulled the decision of the MOEP on formal grounds.

On December 7, 1998, the ministry ordered the caseto be sent back for review to the first-instance authority,the inspector.





On January 28, 1999, the environmental protectioninspector issued a new decision, temporarily prohibitingthe use of the cafe until it could be established that thenoise was within permitted limits. Both Sloboda and theTenants Assembly appealed. On March 22, 1999, theMOEP rejected their appeals.

Meanwhile, on the basis of the decision of the SupremeCourt, Sloboda brought an action on March 3, 1999, beforethe Commercial Court in Belgrade to require the MOEP topay compensation for damages.

Final outcomeThe cafe has ceased operations. The decision of the

Commercial Court was still not issued by August 2002.


Access to justice techniques Neighbours of a noisy cafe made complaints to the rel-

evant authorities in order to enforce applicable noise regu-lations. The owners of the cafe, in turn, presented oppos-ing scientific analyses and successfully challenged theadministrative decision in court. In addition, the cafe wasseeking damages from the MOEP for lost business. Partiesused reconsideration by the same authority, administrativeappeal and judicial appeal mechanisms.

Case study analysisThe tenants appealed the decision by the first-instance

authority regarding the factual situation (i.e. noise level).Even though it was ordered that the noise level should bemeasured, the lack of cooperation by different parties atdifferent times, coupled with a lack of enforcement pow-ers, meant that establishing the facts proved to be a realproblem in this case. The noise was measured from outsidethe cafe and the real level was hard to establish. Althoughformal legal remedies were adequate, greater powers ofenforcement were needed. Because the factual situationcould not be established, all were dissatisfied.

Contacts

Dragoljub TodicTel: +381-11-311-4240 x2421Fax: +381-11-142-564E-mail: [email protected]


The Cacak CasePlaintiffs appealed against the approval of an environ-

mental assessment, seeking review of wrongly establishedfacts in the first detailed analysis, including area of landinvolved, the level of dust in the air and on the ground,noise produced by the quarry, and the safety of citizensaround the quarry.



Key issues


• Standing

• Reconsideration by the same authority


Case study detailsCited case name: In re Susica-Cacak Quarry

Parties involvedPlaintiffs: Residents of Cacak MunicipalityPlaintiffs’ representation: Public Legal Officer of CacakMunicipalityDefendant: Ministry of Environmental Protection of theRepublic of Serbia

Background factsUnder article 16 of the Law on Environmental

Protection of the Republic of Serbia (Official Gazette of theRepublic of Serbia Nos. 66/91, 83/92, 53/93, 67/93, 48/94,44/95 and 53/95), an analysis of the environmental impactmust be made with respect to all facilities and works thatmay put the environment at serious risk. This analysis mustbe approved by the ministry in charge of environmentalaffairs and such an approval forms part of the urban plan-ning and technical documentation. The law does not pro-vide for public participation in the decision-makingprocess. The Rules Regarding Environmental ImpactAssessment (Official Gazette of the Republic of Serbia No.61/92) list the facilities and works for which such an analy-sis must be made and specify how it is to be prepared andwhat it is to include.

On May 13, 1998, the detailed analysis of the environ-mental impact of exploitation of the Susica-Cacak stripmine on particular plots from the land registry situated inthe Loznica community was made. Six days later, PuteviCompany requested the approval of the Ministry ofEnvironmental Protection (MOEP) of the detailed analysis.

Meanwhile, the residents living in the vicinity of thequarry approached the Public Legal Officer of CacakMunicipality for assistance.

The Ministry gave its approval on July 27.

Procedural historyThe same day (July 27, 1998) the public legal officer, as

the legal representative of a group of citizens from the vil-lage of Loznica near Cacak, submitted a proposal to makeanother detailed analysis. One basis of the proposal wasthe fact that the initial analysis had not covered all of therelevant area in the vicinity of the quarry.

In November, the Republic Inspector for EnvironmentalProtection ordered a temporary halt to the operations of theSusica karst crushing plant pending the completion of themeasures provided for in the detailed analysis.

On December 14, 1998, the MOEP issued a decisionannulling the approval decision of July 27, and permitting the





review of the procedure in light of the new facts raised by theresidents. It ordered the procedure to be renewed for anelaboration of a new detailed analysis, having establishedthat there were certain illogical points in the existing analysis.

The new analysis confirmed the findings of the previ-ous one. On February 10, 1999, the MOEP issued a deci-sion approving the new detailed analysis. On March 23,1999, the Inspector established that the measures providedfor in the detailed analysis had been implemented, and onApril 30, the MOEP issued a decision noting that Putevi hadfulfilled the environmental requirements for the conduct-ing of its activities at the Susica karst crushing plant.

On August 13, 1999, the Public Legal Office of the CacakMunicipality, representing the residents of Cacak, appealedagainst the MOEP’s approval of the new detailed analysis.

Final outcomeOn February 25, 2000, the Administrative Commission

of the government of the Republic of Serbia rejected theappeal. From an administrative standpoint, the case wasconsidered closed. However, the problem of the quarryremained prominent among the concerns of local residentsand particularly of certain NGOs.

Related actions and campaignsNGOs continued to oppose the operation of the quarry.

Access to justice techniques The residents of Cacak took advantage of the opportu-

nity to get legal assistance from the Public Legal Office of

the Cacak Municipality. They used reconsideration by thesame authority and administrative appeals to try to over-turn decisions approving the detailed analysis in an EIA.

Case study analysisThere was no public participation in the development

of the detailed analysis. Regulations of the FederalRepublic of Yugoslavia and of the Republic of Serbia didnot address public participation in decision-makingregarding the preparation of environmental assessments.Consequently, there was no basis for the local residents toclaim that their participation rights had been violated. Theonly opportunity for residents to challenge the conclu-sions, therefore, was to appeal against the decisionapproving the detailed analysis on the basis of legal insuf-ficiency.

Contacts

Dragoljub TodicTel: +381-11-311-4240 x2421Fax: +381-11-142-564E-mail: [email protected]


Nuclear Files On three separate occasions, an NGO was denied

access to inspection reports prepared by a governmentagency concerning several nuclear facilities. Each time theNGO filed lawsuits to challenge the decisions, but thecourts took several years to decide the matters.


• Articles 9(1), (4) and (5)

Key issues


• Timely and fair judicial review procedures


Case study detailsCited case name: EEA v. CSN (3 cases)

Parties involvedPlaintiffs: Ecologistas en Accion (EEA), Spanish NGODefendants: Consejo de Seguridad Nuclear (CSN), theSpanish government agency responsible for inspectingnuclear facilities and collecting and disseminating resultinginformation to the public

CASE A

Background factsIn 1998, the iron and steel company Acerinox, located

near Cadiz, accidentally released caesium-137 radiation

into the atmosphere. CSN investigated the incident andprepared a report. EEA requested access to the report pre-pared by CSN on December 1, 1998. CSN denied EEAaccess to the report on December 21, 1998.

Procedural historyAn administrative suit was filed on February 2, 1999,

before the Audiencia Nacional, a special division of theSupreme Court established in order to reduce the caseloadof the Supreme Court and allow for more timely decisions.Audiencia Nacional has jurisdiction over judicial chal-lenges brought against CSN. On February 29, 2000, thecourt ruled in favour of EEA and ordered CSN to makeinspection reports concerning Acerinox available to EEA.On April 5, 2000, the state filed an annulment appealbefore the Supreme Court challenging the AudienciaNacional’s decision. In addition, several companies inter-vened in support of the State’s appeal.

Final outcomeMore than two years later, by July 2002, the court had

not issued a final ruling on the state’s appeal.

CASE B

Background factsOn December 21, 1995, EEA requested access to

inspection reports from January 1992, to December 1995on the activity of the Jose Cabrera nuclear power stationlocated in Zorita, Guadalajara. On January 31, 1996, CSNdenied access to the reports.

Procedural historyEEA filed a lawsuit before the Eighth Section of the

High Court of Madrid Autonomous Region on February 27,1996, challenging CSN’s refusal to provide the inspection


Spain Case 1



reports. Over three years later, on June 9, 1999, the courtruled in favour of CSN, denying EEA’s request for thereports to be made available. EEA filed an annulmentappeal before the High Court on June 29, 1999. Almost twoyears later, on June 18, 2001, citing a formal defect in thefiled appeal, the High Court refused EEA’s petition forappeal, thus sustaining the High Court’s earlier decision.

Final outcomeCSN’s decision to deny access to reports on the Jose

Cabrera power station was sustained.

CASE C

Background factsOn January 4, 1995, EEA requested access to several

inspection reports from 1993 on the activity of the SantaMaria Garona nuclear power station, located near Burgos.On September 21, 1995, CSN denied access to the reports,citing the lack of Spanish transposition of Directive90/313/EEC. It also maintained that the informationrequested was an unfinished document and concernedinternal communications.

Procedural historyEEA filed a lawsuit before the Ninth Section of the High

Court of Madrid Autonomous Region on December 11,1995, challenging CSN’s decision to deny access to reportson the Santa Maria Garona nuclear power station. Almostfour years later, on March 2, 1999, the court ruled in favourof EEA and ordered CSN to make inspection reports con-cerning Santa Maria Garona available to EEA. The courtheld that the requested information was neither an unfin-ished document nor privileged internal communicationsand the reports should thus be supplied to the applicant.The state immediately filed an annulment appeal beforethe Supreme Court challenging the lower court’s decision.

Final outcomeBy July 2002, the case was still pending resolution of

the appeal made by the legal representative of the state.

Related actions and campaignsEEA’s legal actions were consistently accompanied by

mass media activities aimed at raising awareness on theissue and seeking support from the public.

Access to justice techniquesIn all three cases, the plaintiffs used the judicial

review procedure for enforcement of their right of accessto information.

Case study analysisThe excessive delay in the issuing of a final judgement

on the plaintiff’s requests reveals the court’s general non-compliance with the Aarhus Convention requirementsrelated to a fair, equitable and timely review procedure onissues related to access to environmental information. In allthree cases, CSN cited as its reason for denying publicaccess to the inspection reports that they were either unfin-ished documents or, alternately, privileged data or internalcommunications.41

Contacts

Consejo de Seguridad Nuclear C/ Justo Dorado, 11E-28040 MadridSpainTel: +34-91-346-0100

Carlos Martinez-Camarero and Luis Oviedo-Mardones, pro bono lawyers Ecologistas en Accion, Comision JuridicaMarques de Leganes, 12E-28004 MadridSpain Tel: +34-91-531-2739 E-mail: [email protected]

Author of case studyFe Sanchis-Moreno, DirectorLegal DepartmentTERRA, Environmental Policy Centrec/Jorge Manrique, 1E-28420 La NavataSpainTel/Fax: +34-91-509-4092E-mail: [email protected]

Aznalcollar Waste DamA Spanish NGO, filing a lawsuit against a mining com-

pany and regional government to force the clean-up ofpollution from a breached waste dam located on theGuadiamar River, was required to post a substantial bond,despite establishing locus standi. In addition, the excessivelength of the judicial process and the lack of court trainingand resources in dealing with complex pollution controlissues prevented effective resolution of the case.


• Articles 9(3), (4) and (5)

Key issues


• Financial and other barriers (excessive bond require-ment)

• Timeliness of judicial review

• Knowledge and capacity of judges

Case study detailsCited case name: Donana National Park

Parties involvedPlaintiffs: SEO/Birdlife and Coordinadora EcologistaPacifista of Andalusia (the latter since has merged withEcologistas en Accion), two Spanish NGOs (NGOs)Defendants: Boliden-Apirsa, Swedish multinational cor-poration and owner of the Aznalcollar mining facility;The Guadalquivir Basin Authority; Ministry of the

Environment, responsible for protecting the NationalPark and in general for controlling the enforcement ofenvironmental legislation in Spain; and the RegionalGovernment of Andalusia, responsible for implementingand enforcing environmental legislation in Andalusia andprotecting Donana Park

Background factsIn 1979, Boliden-Apirsa was authorised to construct a

waste dam on the Guadiamar River to collect and treatwaste produced by its Aznalcollar pyrite mine. Severalstudies conducted in the early 1980s revealed a highdegree of heavy metal pollution in the Guadiamar River,specifically indicating the “risk of an ecological catastrophedue to the pollution caused by cadmium, zinc, copper andlead.” Consequently, given that 75 percent of the riverflows into Donana National Park, studies suggested thatthe park was threatened. Upon Spain’s ratification of theRamsar Convention, Donana was listed as a Ramsar site.

In 1985, Boliden-Apirsa increased the height of the damin order to increase its capacity. Several more height increas-es would follow. In 1988, NGOs filed a first complaint to theEuropean Commission about the potential risk to DonanaNational Park posed by the Aznalcollar mining facility.Spanish authorities responded to the Commission two yearslater, stating that all prior episodes of pollution on the riverwere “completely solved.” Meanwhile, Donana was regis-tered in the Montreux Register of the Ramsar Convention.

On September 4, 1992, NGOs filed a complaint beforethe Duty Magistrates’ Court requesting a judicial investiga-tion into Boliden-Apirsa’s management of the mine. Inaddition, NGOs requested an investigation into the ade-quacy of enforcement of environmental legislation relatedto mine and waste dam operations by the director of theAndalusia Environmental Protection Agency.

On May 27, 1994, NGOs filed a complaint before theFirst Magistrates’ Court of Sanlucar la Mayor againstBoliden-Apirsa, alleging that the company illegally stored


Spain Case 2

toxic pyrite ashes from another company behind the dam.In support of its lawsuit, NGOs subsequently submitteddocuments and other evidence to the court. In addition,the court requested information from Boliden-Apirsa andcollected its own evidence.

On January 26, 1996, NGOs filed a complaint againstBoliden-Apirsa before the director of Public Prosecution ofthe Principal Court of Seville Province, regarding the leak-age of acid waters from the dam into the Agrio andGuadiamar rivers. Two months later, the director of PublicProsecution of Seville forwarded all documentation to theSecond Magistrates’ Court of Sanlucar la Mayor to com-mence judicial review.

On March 4, 1997, the Second Magistrates’ Court ofSanlucar la Mayor ordered a stay of proceedings. Finally, oneyear and one day later, almost four years after NGOs filedtheir complaint to the First Magistrates’ Court of Sanlucar laMayor, the court initiated the collection of evidence.

On March 25, 1998, NGOs submitted a second com-plaint to the European Union. The Commission decidedthat there was not enough evidence to start an infringe-ment procedure.

On April 25, 1998, the Aznalcollar catastrophe tookplace. The dam broke and five hectare metres of pollutedsludge and highly toxic water flowed into the Guadiamar River, at a site only 50 kilometres upstream of the DonanaMarsh located within the park.

Procedural historyThe same day, NGOs filed a complaint to the Spanish

Civil Guard against Boliden-Apirsa alleging criminal liabili-ty for discharging sulphuric acid and heavy metals, includ-ing mercury, arsenic and cadmium, into a hydrographic sys-tem encompassing several rivers and the Donana Marsh.

On May 13, 1998, NGOs filed a second lawsuit beforethe Second Magistrates’ Court of Sanlucar la Mayor againstBoliden-Apirsa, the Guadalquivir Basin Authority, and theIndustry and Environment departments of the AndalusiaRegional Government alleging liability for the toxic dis-charge caused by the Aznalcollar dam breach. In addition,NGOs asserted Boliden-Apirsa’s illegal attempt to concealpolluted sludge.

On June 3, 1998, the Second Magistrates’ Court ofSanlucar la Mayor requested a bond of PTA 5,000,000 fromCEPA and SEO/Birdlife as a prerequisite for admitting theircomplaint and initiating the case. The NGOs appealed thedecision.

On June 9, 1998, NGOs filed a second lawsuit beforethe Second Magistrates’ Court of Sanlucar la Mayor againstseveral authorities alleging improper clean-up activities.

On appeal of the Second Magistrates’ bond require-ment, the Principal Court of Seville Province reduced thebond requirement to PTA 1,000,000 on October 15, 1998.

Subsequently, NGOs filed an additional lawsuit onNovember 19, 1998, before the Second Magistrates’ Court

of Sanlucar la Mayor against the Environment Departmentof the Andalusia Regional Government complaining of airpollution caused by the inappropriate removal of thesludge during clean-up operations.

NGOs made several requests to the Second Magistrates’Court of Sanlucar la Mayor for the collection of evidence inrelation to these suits in December.

On December 22, 2000, more than two years after theinitial Aznalcollar-Donana suit was filed, the judge ordereda stay of proceedings, holding that, in the court’s opinion,no parties had been found liable for causing the dambreach catastrophe. NGOs filed an appeal before the samecourt, which was denied on March 5, 2001. NGOs followedthis with an appeal to the Court of Seville Province, chal-lenging the stay order.

Final outcomeIn November 2001, the Court of Seville Province issued

a decision on the appeal filed by NGOs in March 2001, rul-ing that there was no criminal offence involved in the dambreak, and opening a civil case for compensation. TheAndalusia Regional Government initiated a civil case forcompensation of costs incurred for cleaning up the site.

Relevant actions and campaignsNGOs’ legal efforts were consistently accompanied by

mass media activities, including several public demonstra-tions.

Access to justice techniquesThe plaintiffs made use of the judicial review proce-

dure, alleging the criminal liability of the company for thedischarge of hazardous substances, while making use ofthe judicial review procedures available for acting againstresponsible public authorities. In spite of excessive bondrequirements, the plaintiffs pursued their judicial remedies.

Case study analysisIn the Spanish judicial system, the Second Magistrates’

Court of Sanlucar la Mayor is only responsible for “instruct-ing” the case and preparing it for a second judge who iscompetent to make a judgement. However, the court didnot have sufficient resources in terms of personnel, equip-ment or technical support to deal with such a complex case.This resulted in several difficulties for lawyers representingthe parties, including accessing the case record, delaysresulting from unusual timetables, and insufficient means tophotocopy records and data. Insufficient administrativeresources also caused inadequate assessment of the envi-ronmental damage caused by the dam breach catastrophe.

NGOs asserted that the Second Magistrates’ Courtimproperly judged the case, and further, that the “instruc-




tion” given was improper because a considerable volumeof environmental data and evidence was not properlyaccepted. NGOs asserted that the judge’s finding that therewas insufficient evidence to establish liability was based onher failure to appreciate the volume of admissible evidenceand data available.

The judge demonstrated a lack of understanding ofcore issues of the case related to environmental questionsand competences, including the elements needed to estab-lish an environmental criminal offence under article 325 ofthe Spanish Criminal Code. Consequently, court decisionsregarding evidence were often inefficient — not allowingfacts and their cause/effect links to be established.Moreover, the judge rejected many proposals made by theparties regarding the collection of evidence that wouldhave alleviated this problem. Public authorities that shouldhave been joined as defendants were not included and thecourt failed to find any party liable.

Despite having standing, the NGOs that were party tothe suit were required to provide a bond of PTA 5,000,000(EUR 30,050). After lodging an appeal, the bond wasreduced to PTA 1,000,000 (EUR 6,010).

Three years passed before the Court issued a decisionstating that the instruction phase should conclude becausethere was no criminal offence involved.

Contacts

Ministry of the Environment Abogacia del EstadoD. Jose Enrique Garcia de la Mata Caballero de RodasPza. San Juan de la Cruz s/nE-28071 MadridTel: +34-91-597-6000

Andalusia Regional Government Secretario General TecnicoAvda. Manuel Siurot, 50, Casa SundheimE-41013 SevillaTel: +34-95-500-3400E-mail: [email protected]

Boliden-Apirsa42

Public Relations Department Carretera Jerez-Aznalcollar s/nE-41870 SevillaTel: +34-95-413-5429

SEO/Birdlife C/Melquiades Biencinto, 34E-28053 Madrid Tel: +34-91-434-0910 E-mail: [email protected]

Carlos Martinez-CamareroEcologistas en Accion de Andalucia Parque S. Jeronimo, s/nE- 41015 SevillaTel: +34-95-490-3984 E-mail: [email protected]

Author of case studyFe Sanchis-Moreno, Director43

Legal DepartmentTERRA, Environmental Policy Centrec/Jorge Manrique, 1E-28420 La NavataTel/Fax: +34-91-509-4092E-mail: [email protected]

S P A I N C A S E 2



South Bug River CaseA citizen denied access to environmental information

concerning the development of a petrol station successful-ly challenged the denial in court.



Key issues

• Judicial review procedure



• Adequate remedies

Case study detailsCited case name: Reznikov v. Chief Sanitary Inspector

Parties involvedPlaintiff: Yuriy ReznikovDefendant: Chief Sanitary Inspector

Background facts In the city of Khmelnytsky, the construction of a gaso-

line filling station started on the bank of the South BugRiver. Yuriy Reznikov, deputy chairman of the OblastSociety for Environmental Protection, acting in a privatecapacity, requested health and environmental data fromthe regional Chief Sanitary Inspector regarding the petrolsite. In particular, he requested assessments and forecasts

of health indices for Khmelnytsky citizens and air monitor-ing results.

Reznikov was denied any information regarding thepotential environmental impact of the station, receivingonly irrelevant data with no bearing on the site or localenvironmental conditions. The formal reply from the sani-tation inspector — a common response to citizen informa-tion requests — simply stated: “the regional SanitaryEpidemiological Station (SES) has no materials concerningthe construction of the gas station.”

The sanitation inspector ignored all further requests forinformation, in violation of Ukrainian laws on Information,on Citizen Appeals and on Ensuring Sanitary andEpidemiological Welfare of the Population.

Procedural history Reznikov filed a complaint with the Khmelnytsky City

Court asserting that denying access to the requested infor-mation and ignoring information requests were illegal andrequesting that the court order the Inspector’s office to pro-vide the information. Initially, the court refused to registerand consider Reznikov’s complaint. Only after increasedmedia attention did the court review the complaint.

Final outcome On July 2, 1999, the court ruled in favour of Reznikov.

The court declared the actions of the Chief SanitationInspector illegal and ordered him to provide the request-ed information.

Related actions and campaignsIn this matter, the letter of the law combined with

media pressure initiated by Reznikov overcame traditionalaccess to justice obstacles.


Ukraine Case 1



Access to justice techniques In the instant matter, judicial review of the government

official’s action was the method chosen. However, a key tothe success of this effort was the existence of a clear right-to-know law in Ukraine and pressure by the media on thecourt to enforce the law.

Case study analysisAs a rule, it is difficult for public organisations and citi-

zens to get required environmental information from offi-cials. This case demonstrated for the first time that an ordi-nary citizen of Ukraine could use the court system to defendhis or her right to access environmental information.

The Inspector’s denial clearly violated Ukrainian lawson Information, on Citizen Appeals and on EnsuringSanitary and Epidemic Welfare of the Population. Morespecifically, the Law of Ukraine on Information guaranteesa broad right for citizens to information. In addition, article4 of the Law of Ukraine on Ensuring Sanitary andEpidemiological Welfare of the Population grants citizensthe right to true and timely information about the state oftheir health, the health of the population, and possiblehealth risk factors and their degree. Article 7 of the Law ofUkraine on Citizen Appeals also notes that if an informa-tion request to a state authority refers to information out-side its jurisdiction, the request has to be forwarded to acorresponding body or official within five days with notice

to the citizen.Reznikov was able to bring suit against the government

official pursuant to article 55 of the Constitution of Ukraine(1996), which confers to the individual a right to challengethe decisions, actions or omissions of bodies of statepower, bodies of local self-government, officials and offi-cers in court.

Generally, Ukrainian courts hesitate to review casesagainst government authorities. In this matter, the court ini-tially stated that Reznikov’s complaint would not be heardbecause there were many more serious and importantcases to be considered. Such a hurdle in accessing thecourts is problematic because citizens are often illegallydenied access to information and need the courts to vindi-cate their rights.

Contact

Dmitry Skrylnikov, Attorney, Executive Director Charitable Foundation Ecopravo-Lviv2 Krushelnitskoi str.Lviv, 79000UkraineTel/Fax: +380-322-971446E-mail: [email protected]: www.ecopravo.lviv.ua

Oilfield Information CaseAn NGO had to appeal to the courts after it was denied

access to important environmental information in an effortto petition against the development of an oil field in a pro-tected environmental sanctuary.



Key issues


• Commercial confidentiality


Case study detailsCited case name: Ecopravo-Lviv v. State GeologyCommittee

Parties involvedPlaintiff: Ecopravo-Lviv, NGO Charitable Foundation(NGO) Defendant: State Geology Committee

Background factsThe NGO requested environmental information from a

number of government agencies in order to becomeinvolved in the decision to permit Boryslav Oil Inc. todevelop Stynava Oilfield in a protected water reservoirzone. In particular, the NGO requested from the StateGeology Committee, a government agency, copies of the

license for oilfield development granted to Boryslav,including onsite environmental information, conditions fordevelopment in the area, potential liabilities and more.

The NGO made several requests for this information,but they were either ignored altogether or denied.

Procedural historyThe NGO filed a lawsuit against the State Geology

Committee before the High Arbitration Court. Initially, thecourt rejected the complaint stating that the matter was notwithin the competence of the High Arbitration Court.

Subsequently, the NGO appealed the court decision toan Appeal Collegium of the High Arbitration Court. TheAppeal Collegium reversed the lower Arbitration Court’sdecision and remanded the case for reconsideration by theHigh Arbitration Court under another judge.

The hearing was held on October 27, 1999. At the pro-ceeding, the State Geology Committee offered the follow-ing arguments for denying the NGO access to the request-ed information:

• As an environmental organisation, the NGO requiredonly environmental data, and licensing agreementswere beyond the scope of a reasonable request.

• The NGO should have sought the information directlyfrom Boryslav.

• The information requested was confidential businessinformation and, alternately, expensive geologicalinformation that could not be provided free of charge.

Final outcome The court ruled that the Ukrainian Law on Information

requires that the requested information should be provid-ed. However, the court proposed that the committee pro-vide the requested information of its own free will. Thecourt reasoned that, if it was to invoke the Law on


Ukraine Case 2

Information, the committee’s initial denial would bedeemed illegal and thus the agency would be subject to adisciplinary penalty. Reluctantly, the committee providedthe NGO with the information requested. The courtimposed expenses on the committee.


Access to justice techniques The NGO sought judicial review of the committee’s

denial pursuant to the Arbitration Procedure Code. In fur-therance of its claim, the NGO cited rights to informationunder the Law on Information and the Law onEnvironmental Protection.

Case study analysisThe decision by the Appeal Collegium of the High

Arbitration Court demonstrated that the denial of informa-tion to an NGO is clearly a matter for the courts to resolve.Citing the same information laws that confer a right to

information to citizens, the court ruled that the NGO had aright to the requested information as a matter of law.

In matters such as this, where the case involves juridi-cal persons (i.e. NGOs and government agencies), courtfees are higher than if an individual had brought the case.Consequently, many NGOs may decide not to pursue legalaction, despite a legal right to information.

In this matter, the court decision to shift fee liability tothe committee demonstrates an effective means of encour-aging NGOs to bring meritorious suits and greatlyimproves overall access to justice.

Contact

Dmitry Skrylnikov, Attorney, Executive Director Charitable Foundation Ecopravo-Lviv2 Krushelnitskoi str.Lviv 79000UkraineTel/Fax: +380-32-297-1446E-mail: [email protected]: www.ecopravo.lviv.ua



Pyrogovo Villagers CaseResidents living within a contaminated zone surround-

ing a city landfill were denied access to judicial proceed-ings to enforce a resettlement decree that had been issuedseveral years before.


• Article 9(3)

Key issues


• Judicial independence

Case study detailsCited case name: Citizens v. Kyiv City Administration

Parties involvedPlaintiffs: One hundred and twenty-eight (128) residentsof the village of Pyrogovo Plaintiffs’ representation: Ecopravo-KyivDefendant: Kyiv City Administration

Background facts In 1957, a Kyiv city dump was established near

Pyrogovo village, 200 metres from the homes of 128 resi-dents. Ukrainian law stated, however, that a 500-metrebuffer should be created separating the landfill from resi-dences. In constructing the landfill, design estimates andtechnical assessments were not conducted and relevantsanitation and environmental standards were largelyignored. Moreover, a radioactive waste plot, a gas-distribu-tion station, and one of the biggest tobacco factories in

Europe, Reemtsma Ukraine, were situated nearby. Severe contamination resulted over the course of 30

years. Kyiv environmental managers reported that theaquifers in the area were contaminated by chemicals andradioactive isotopes at depths of 40-70 metres. In addition,contaminated leachate extended upward to a depth of 9-10metres, about 15 metres above protective barriers designedto contain the leachate from spilling into the surroundingneighbourhood. It was estimated that a heavy downpouror thaw would likely result in the flooding of leachate intothe surrounding area.

In 1985, monitoring revealed that village wells wereheavily contaminated with heavy metals such as mercury,lead and tritium exceeding maximum permissible concen-trations (MPC) by ten to several hundred times.

Initially, rather than order a resettlement, city officialsordered new water pipelines to be constructed. Soonthereafter, the new pipes rusted and water contaminationcontinued. In recent years, cancer deaths were reported innine out of ten houses on Krasnoznamyonnaya Street,located near the landfill.

Later in 1985, authorities ordered the resettlement ofresidents in the village. No action was taken, however.Similar decisions were made in 1987 and 1988, but againno action was taken.

Procedural historyIn the autumn of 1999, the citizens of Pyrogovo village

requested Ecopravo-Kyiv to represent them in protectingtheir environmental rights by compelling authorities tocarry out the ordered resettlement. On November 16, 1999,Ecopravo filed a complaint on behalf of the villagers seek-ing resettlement and damages from contamination andprior delays in relocating.

In preparing documents for presentation before thecourt, the Kyiv chief sanitation inspector produced evi-dence that Ukrainian laws on health, sanitation and envi-ronmental protection had been violated in the construction


Ukraine Case 3



and maintenance of the landfill. In addition, the Office ofNational Environmental Management in Kyiv confirmedviolations of relevant environmental regulations in themaintenance of the site. Finally, city officials acknowl-edged onsite air, soil and underground water contamina-tion, that an adverse health risk was present requiringimmediate resettlement, and that the prior orders to reset-tle had not been carried out.

Despite these admissions, the court failed to ruleimmediately in favour of the villagers. Instead, the courtordered a stay in the proceedings so that officials couldmake another decision on resettlement.

On November 25, 1999, city officials decided again toresettle the inhabitants of the village of Pyrogovo, inven-torying those to be relocated and offering real estateindemnity. The court did not return to the matter untilJanuary 12, 2000.

Final outcome The Pyrogovo village residents were provided with bil-

lets for new lodgings in Kyiv and were relocated.On February 17, 2000, the court denied the villagers’

claim for damages, stating that the claim was moot giventhat officials were now relocating them.


Access to justice techniques Ecopravo-Kyiv conducted several advisory meetings

with the citizens of the Pyrogovo village. In addition,Ecopravo members visited villagers in their houses andsurveyed the dump, the private plots of the villagers andthe surrounding area.

In order to represent the citizens, Ecopravo signed arepresentation agreement with the villagers.

In preparation of the lawsuit, Ecopravo attorneys com-piled documents and testimony from government officials.Given the complexity of the subject matter and documents,NGO attorneys had several meetings with the judge.

Case study analysisHad the court recognised the omissions of city officials

in failing to resettle the villagers earlier, the villagers wouldlikely have been successful in receiving compensation forhealth and property damage. Unfortunately, the judicialbranch in Ukraine is not completely independent of gov-ernment authorities. Thus, most court decisions are eithervague or the scope of recovery allowed by citizens againstthe government is limited. From the nature of the proceed-ings, it is apparent that the court purposefully delayed pro-ceedings so that authorities could have a chance to decideon resettlement anew, thus mooting the villagers’ com-plaint and relieving the authorities of responsibility.

Contacts

Mykola Nychyporovych Pochynok, PresidentSelf-Governing Committee of Pyrogovo VillageChervonopraporna St, 22303026 KyivUkraine

Boris Vassylkivsky, ChairmanEcopravo-KyivP.O. Box 51Kyiv 04119UkraineTel/Fax: +380-44-228-7510E-mail: [email protected] or [email protected]

The Troublesome CafeA citizen sought a court ruling that government permits

granted without considering impacts to health and welfareof citizens are illegitimate, and sought compensation fordamages stemming from state authorities’ illegal permittingof a cafeteria beneath his residence.



Key issues

• Review of public participation in specific decision-making

• Adequate remedies (moral damages)

Case study detailsCited case name: Vassylkivsky v. Shevchenkivski DistrictAdministration; Vassylkivsky v. Dnepr-A

Parties involvedPlaintiff: Borys M. Vassylkivsky, Kyiv resident Plaintiff’s representation: Ecopravo-KyivDefendants: Shevchenkivski District Administration inKyiv (SDA); and Dnepr-A

Background facts In 1995, SDA granted a permit to Dnepr-A to operate a

cafeteria in a building located on Artyoma Street in Kyiv.Vassylkivsky sought the representation of Ecopravo-

Kyiv (of which he was the chairman), a public interest legalaid organisation, and filed a complaint in theShevchenkivski District Court asserting that SDA’s permit

was illegal in light of several existing regulations.Specifically, Vassylkivsky claimed that SDA ignored exist-ing building, fire prevention and sanitation rules in allow-ing the operation of a cafeteria beneath his residence thatwas inadequately equipped and noisy.44

Procedural history In his complaint to the Shevchenkivski District Court,

Vassylkivsky sought a ruling that decision-making withoutconsideration of public concerns is illegitimate and that thedecision in this case should be declared invalid. In turn,SDA replied that the decision-making process in granting apermit to the cafeteria was mindful of citizen concerns andthus valid.

During the proceedings, the court found that SDA madeno inquiries into whether the cafeteria was adequatelyequipped for food preparation and sanitation or whetherthe plans were modified to accommodate the interests andconcerns of residents, including Vassylkivsky, who livedabove the cafeteria. In addition, SDA was unable to pro-duce any official project documents regarding the request-ed refurbishment of the premises, as required by law.

In 1997, given these findings, the court ruled that SDA’sdecision was illegitimate since SDA failed to collect theproper documents and did not consider the interests ofnearby residents in light of the intended purpose of therefurbishment.

Subsequently, Vassylkivsky filed an additional lawsuitseeking compensation for “moral damages” inflicted by theoperation of the illegitimate cafeteria.

The court again ruled in favour of Vassylkivsky, hold-ing that moral and physical damage resulted from the cafe-teria activities approved by SDA. However, the courtrejected Vassylkivsky’s damage calculations as speculative.

Final outcome Based on the court ruling, SDA reversed its prior deci-


Ukraine Case 4



sion and halted operation of the cafe until necessary meas-ures were enacted to accommodate the interests and con-cerns of residents within the building. The civil suit for moral damages was not resolved.


Access to justice techniques Vassylkivsky used the courts to invalidate a decision

that was not in accordance with the law. He employed theassistance of Ecopravo-Kyiv attorneys.

Case study analysisSDA’s actions in this matter illustrate the continued dif-

ficulty citizens have in participating and enforcing theirinterests in official decision-making processes. To be sure,the existing laws cited in this matter provide substantiverequirements that a government agency must abide by.However, what are needed are regulations with more spe-cific and definite requirements guaranteeing that citizensare consulted and their interests are taken into account.Furthermore, citizens must be given ample opportunity tospeak at hearings, particularly when the matter directly

affects them or their property.

Finally, while the court sided with the citizen in this

matter, courts continue to limit the scope of relief available

to a citizen when seeking compensation from the govern-

ment. In addition, courts will often show greater flexibility

towards the government in terms of claims unsupported by

evidence and interpretations of ambiguous laws.

Contacts

Shevchenkivski State District Administration of theCity of KyivArtyoma St, 89

04050 Kyiv

Ukraine

Boris Vassylkivsky, ChairmanEcopravo-Kyiv

P.O. Box 51

04119 Kyiv

Ukraine

Tel/Fax: +380-44-228-7510


[email protected]

Groundwater Information CaseProtection of NGOs’ right of access to information was

tested in this case.


• Article 9(1)

Key issues


• Commercial confidentiality

• Defences to information requests (formulated in toogeneral a manner)

Case study detailsCited case name: Ecopravo-Lviv v. Brodyvodocanal (caseno. 4/2436-31/197)

Parties involvedPlaintiff: Ecopravo-Lviv, a charitable foundationDefendant: State Communal Enterprise Brodyvodocanal

Background factsOn May 23, 2001, Ecopravo-Lviv requested information

from the communal enterprise Brodyvodocanal regardingthe boundaries and sanitation protection zones of ground-water intake, plans for providing good quality water, plansfor systematic laboratory control of water quality, and thestate of relevant water resources. In a letter dated May 31,2001, Brodyvodocanal refused the request, stating that arti-cle 30 of the Law on Information does not designate theinformation requested by Ecopravo-Lviv as publicly avail-able information.

Procedural historyIn July 2001, Ecopravo-Lviv filed a lawsuit in the

Economic Court in the Lviv Region requesting the court to:

1) declare the denial of the information request as unlaw-ful and in violation of Ecopravo-Lviv’s rights;

2) oblige Brodyvodocanal to provide the necessary infor-mation; and

3) require the defendant to pay court fees.

In the writ, Ecopravo-Lviv cited the Constitution ofUkraine, laws of Ukraine on Environmental Protection andon Information, and the Aarhus Convention.

The case commenced on August 7, 2001.Brodyvodocanal sent its response to the court stating that,according to article 4 of the Aarhus Convention, it canrefuse to turn over information if the request is not wellgrounded or is written in too general a form. It also assert-ed that, according to article 30 of the Law on Enterprises,the information requested was commercial information,not environmental information, and was not referred to bythe Cabinet of Ministers on the list of registers that are notconsidered as a commercial secret.

On November 1, 2001, the first court session was heldwhere both parties presented their arguments. Not onlyEcopravo-Lviv, but also Brodyvodocanal referred to theAarhus Convention.

It was necessary for Ecopravo-Lviv to prove in court that:

• as an environmental public organisation it did not haveto state in the information request the reasons forrequesting the environmental information;

• its request was not too general; and

• the information requested was public information.

Arguments were stated in the memorandum given tothe judge, and included the following.


Ukraine Case 5

As an environmental public organisation, Ecopravo-Lviv did not need to state reasons for its environmentalinformation request. An absence of a reason for requestingthe information could not be interpreted as “writing arequest in a general form.”

Article 34 of the Constitution of Ukraine states that every-one has a right to collect, use and disseminate informationin written, oral or other form. Article 50 of the Constitutionguarantees the right of free access to information on the stateof the environment and a right to disseminate such informa-tion. Such information cannot be held secret.

According to article 4 of the Aarhus Convention, publicauthorities should give environmental information to anymember of the public in the frame of national legislationwithout requiring the member of the public to state aninterest. Article 9 of the Water Code of Ukraine foresees thedirect duty of organisations to inform the population onthe state of water, and on measures taken to improve thestate of water. Article 11 of the Water Code of Ukraine fore-sees the right of NGOs to receive information on the stateof water, sources of pollution and water usage, and plansand measures on the use of waters and on the restorationof water resources. Article 21 of the Law of Ukraine onEnvironmental Protection establishes the right of environ-mental NGOs to receive information on the state of theenvironment, sources of pollution, and plans and meas-ures concerning the environment.

The information requested was public (i.e. not a com-mercial or state secret). As the defendant did not claim thatthe requested information was a state secret, it was only nec-essary for Ecopravo-Lviv to prove that the requested infor-mation was not a commercial secret. According to theDecree of the Cabinet of Ministers of Ukraine on the list ofdocuments that are not a commercial secret, documents thatpermit an activity or type of activity cannot be consideredcommercial secrets. The document under whichBrodyvodocanal’s licence to provide water was granted,was a permit for specific water usage under article 29 of theWater Code of Ukraine. Some of the information that wasrequested by Ecopravo-Lviv would be found in such permit.

Information contained on forms for state reportingrequirements could also not be considered commercialsecrets. Some of the information requested was required tobe reported to the state by Brodyvodocanal, under article24 of the Water Code and the Order of the State Committeeof Statistics. Finally, information on environmental pollu-tion could not be considered commercial secrets. Someinformation requested was information on water pollution.

Finally, according to the Law on Information, the Lawon Enterprises, and the Order of the Main RevisionCommittee, the head of an enterprise must determine thecontent and volume of information considered a commer-cial secret, and the means for protecting its confidentiality(taking into account relevant legal provisions). Even if theinformation requested could have been a commercial

secret, the head of Brodyvodocanal never designated thisinformation as a commercial secret.

Final outcome On November 9, 2001, at the second court session, the

court ruled in favour of Ecopravo-Lviv in full, requiringBrodyvodocanal to hand over the necessary information,and pay the state fee of UAH 85 (USD 16) and technicalexpenses of the arbitration procedure of UAH 69 (USD 13).Three days later the court issued an order on compulsoryimplementation of the court’s decision.

In December 2001, Brodyvodocanal handed over theinformation. On January 29, 2002, Ecopravo-Lvivaddressed the Brodov Judicial Administration to requestexecution of the requirement to pay the court fees. OnMarch 5, 2002, Brodyvodocanal paid the court fees of UAH154 (USD 30).

Related actions and campaignsThe plaintiff placed articles in the mass media and in

the Environmental Advocacy Bulletin.

Access to justice techniquesEcopravo-Lviv applied to the courts to compel the state

enterprise to provide the requested environmental infor-mation. It also asked the court to order the defendant topay the court fees.

Case study analysisUnder the legislation of Ukraine, information on envi-

ronmental protection cannot be considered a commercialsecret, although not all environmental information isexempt. The legislation of Ukraine does not clearly pro-vide that an NGO can request information without giving areason. The legal argumentation had to be made in court.

Giving a legal memorandum to the court with adetailed analysis of the legislation with citations can sub-stantially help to achieve a positive result for the plaintiff.

Contact

Irina Tustanovskaya, Lawyer, Vice President Ecopravo-Lviv2, Krushelnitska StreetLvivUkraineTel: +380-32-272-2746Fax: +380-32-297-1446E-mail: [email protected]@icmp.lviv.ua Website: www.ecopravo.lviv.ua Sofia Vankovich, Assistant to the Vice-PresidentLegal Clinic ProgrammeEcopravo-Lviv




The Lappel Bank CaseSeeking interim relief to stay development of a wetland

and wild fowl breeding area pending a final judgement onthe merits of its claim, a British NGO faced exceedinglynarrow judicial standards making interim injunctive anddeclarative relief difficult to attain.



Key issues


• Standing (sufficient interest)


• Financial and other barriers (excessive bond require-ments)

Case study detailsCited case name: Regina v Secretary of State for theEnvironment, ex parte Royal Society for the Protection ofBirds (Port of Sheerness Ltd, Intervenor)

Parties involvedPlaintiff: Royal Society for the Protection of Birds (RSPB),British NGODefendant: Secretary of State for the Environment (thesecretary), UK minister primarily responsible for environ-mental protectionThird-party intervenor: Port of Sheerness, commercialport facility; the United Kingdom, France, and theCommission of the European Communities participated inproceedings before the European Court of Justice (ECJ)

Background facts Lappel Bank, 22 hectares of intertidal mudflat, is part of

the Medway Estuary and Marsh system, a large wetlandsarea serving as a breeding ground, migratory route andwintering area for substantial numbers of wildfowl andwater species, including two species listed on Annex I ofthe European Union’s wild birds directive. Lappel Bankitself provides feeding and sheltering grounds for a num-ber of waders and wildfowl (although none listed in AnnexI of the directive).

In December 1993, the Secretary of State for theEnvironment decided not to include Lappel Bank within aSpecial Protection Area (SPA) that was to be created underthe wild birds directive, encompassing the remainder ofthe Medway Estuary and Marsh system. Pivotal to this deci-sion was the fact that Lappel Bank bordered the Port ofSheerness, the fifth largest commercial port in the UK. Thesecretary concluded that the need to promote commercialviability of the port outweighed the area’s conservationvalue. The decision was intended to safeguard the contin-ued viability of the Port of Sheerness, a significant contrib-utor to the economy of the surrounding area suffering fromhigh unemployment.

Procedural historyThe RSPB requested judicial review of the secretary’s

decision by the Divisional Court of the Queen’s BenchDivision of the High Court, seeking to have the decisionquashed on the grounds that it contravened the wild birdsdirective, as the secretary was not entitled to excludeLappel Bank based on economic considerations. TheDivisional Court refused the application in July 1994, andthe RSPB appealed to the Court of Appeal.

In August 1994, a majority of the Court of Appeal upheldthe decision of the Divisional Court and the RSPB subse-quently appealed to the House of Lords. By order ofFebruary 9, 1995, the House of Lords stayed the proceedingspending a preliminary ruling from the European Court of

United Kingdom Case 1

Justice (ECJ) on the issue whether the Secretary of State forthe Environment was entitled, under the wild birds directive,to consider economic factors in making a decision.

Pending a final determination of the case, RSPBrequested interim declaratory relief, conferring temporaryprotected status to Lappel Bank and halting any develop-ment. The House of Lords refused the RSPB’s request.45

Primary among the reasons for the House of Lords’ refusalwas the stated inability and unwillingness of RSPB to com-pensate the Port of Sheerness for losses resulting from theimposition of interim relief. Regardless of the intendedbenefit of a halt in development, such a delay could resultin considerable commercial losses to the Port of Sheernessand thus the House of Lords would not grant interim reliefin the absence of RSPB providing a “cross-undertaking” indamages. In support of its ruling, the court stated that, hadthe RSPB sought an interim injunction rather than a decla-ration, they would undoubtedly have been required to givesuch an undertaking as a condition of being granted relief.

The Advocate-General gave his Opinion on March 21,1996 and the Court issued its judgement on July 11, 1996.The matter then returned to the House of Lords.

Final outcome Following the Advocate-General’s conclusion, ECJ

ruled that member states were not authorised to take intoaccount economic requirements when designating SPAsunder article 4 of the wild birds directive. The ECJ heldthat article 4 provides for the special protection of birdsthat are the most endangered in the Community (Annex Ispecies) or constitute a common heritage (migratoryspecies). Citing existing precedent, ECJ ruled that, giventhe particular vulnerability and importance of these class-es of birds, the ornithological criteria laid down in para-graphs (1) and (2) of article 4 must be the sole determi-nants in classifying SPAs.46

Despite RSPB succeeding on the merits, however, LappelBank was destroyed before final judgement was given.


Access to justice techniques RSPB’s choice to seek judicial review of the secretary’s

decision is the most commonly used means to challengedecisions of a public nature made by public bodies. In orderto bring proceedings for judicial review, an individual ororganisation must show that it has a “sufficient interest” inthe matter concerned. UK courts tend to construe broadlywhat constitutes a sufficient interest in environmental cases,especially in relation to proceedings brought by NGOs. Thiscase is a positive illustration of such liberal rules on standingin that RSPB’s interest in the case arose from the environ-

mental and conservation implications of the decision, notfrom any direct private interest in the site itself.

Case study analysisHad the House of Lords granted interim relief, the

destruction of Lappel Bank prior to a final determinationwould almost certainly have been avoided. While it isundoubtedly appropriate for national courts to retain dis-cretion on whether interim relief should be granted in aparticular case, the approach taken by the UK courts in thisand other environmental cases underscores the conse-quences of unduly restrictive interpretation of when suchrelief should be granted.

Article 9(4) of the Aarhus Convention requires proce-dures covered by the Convention to provide “adequateand effective remedies, including injunctive relief asappropriate.” Foremost, in terms of environmental cases,the approach taken by UK courts in determining whetherto grant such interim injunctive and declaratory relief isunduly restrictive in that it focuses heavily on the availabil-ity of a cross-undertaking in damages by the party seekinginterim relief (usually the environmental NGO) rather thanexamining a totality of factors, including the environmen-tal interest at stake.

In cases where the applicant is seeking interim relief,such as an injunction to maintain the environmental statusquo pending a final determination of the case, the UKcourts take the general approach to interim injunctions laiddown by the House of Lords in the 1975 case of AmericanCyanimide v Ethicon.47 In essence, this requires the courtto determine, first, whether there is a “serious issue to betried” and, second, whether “the balance of convenience”lies in favour of granting or refusing the interlocutory reliefthat is sought.

A first stage in assessing the balance of convenience isto determine the availability to either party of an adequateremedy in damages. This means that, if damages would bean adequate remedy for the applicant for interim relief, ifthat party were ultimately to succeed in his claim, the courtwould not order interim relief. If this is not the case (as inmany environmental cases) the court must go on to con-sider whether, if the party opposing interim relief (such asthe developer in this case) is ultimately successful, thatparty would be adequately compensated for losses result-ing from the imposition of interim relief by a cross-under-taking in damages from the person seeking interim relief.Only if the availability of damages does not resolve mattersin this way will the court go on to examine the balance ofconvenience more generally. If damages would be an ade-quate remedy and the person seeking relief is in a positionto pay them, courts have taken the approach that interimrelief may be granted. In environmental cases, however,courts have tended to take the view that, where an NGOrefuses or is unable to offer a cross-undertaking in dam-ages, the interim relief should not be granted.




As evident in this case, in environmental judicial reviewproceedings, the challenge typically relates to a decisionauthorising or permitting some kind of development oractivity with irreversible environmental consequences.Subsequently, the purpose of seeking interim relief in suchcases is to prevent the development or activity at issue untilthe case has been resolved. This may take some time, par-ticularly if, as in this case, a referral is made to the ECJ.

To the developer, generally, the financial conse-quences of halting development until final determinationof the case may be significant. However, judicial reviewproceedings of this type are likely to be brought by envi-ronmental NGOs or by concerned individuals (such aslocal residents) who do not have the means or are not in aposition to offer a cross-undertaking in damages to thedeveloper to cover the cost of imposing interim reliefshould the case ultimately fail.

Consequently, if the court makes provision of a cross-undertaking in damages an indispensable requirement forobtaining interim relief, then interim relief will rarely begranted in environmental cases and irreversible damagemay be done to the environment even in cases where theapplicant ultimately succeeds in showing that the decisionauthorising the activity is unlawful.

Looking to avoid this conundrum, courts could take abroader view of the criteria for granting interim relief in envi-ronmental cases, based on an overall determination of thebalance of convenience rather than on the availability of across-undertaking in damages alone. This would make itlikely that interim relief would be granted more often inenvironmental cases. For example, a court could look at anassessment of the merits of the case, the position of the par-ties involved and the environmental interest at stake, includ-ing the costs of destroying the environmental interest con-cerned. It would then be in a position to grant interim reliefeven where a cross-undertaking in damages is not available.

The following factors may also be of particular rele-vance in environmental cases. It may be argued that,where a site has been designated for special protection, adeveloper is effectively put on notice that there are likelyto be restrictions on damaging the site, and where the lawis unclear, the benefit of the doubt should be given to theenvironmental interest until the position is determined.Courts should bear in mind that potential damage to the

environment is likely to be more difficult to quantify thanpotential economic losses incurred by a developer. It doesnot follow, however, that the economic loss always“trumps” environmental loss. Finally, where the applicantfor interim relief is an environmental NGO acting in thepublic interest (as here) the approach to be taken to thegranting of interim relief should not necessarily be thesame as where two private interests are involved in a pri-vate claim.

It is not clear from the case law of the UK that the pro-vision of a cross-undertaking in damages is an indispensa-ble requirement for interim relief. In some cases, courtshave dispensed with the requirement because the personseeking interim relief is impecunious. Perhaps moreimportantly, in a number of leading cases, the courtsappear to have taken a broader approach to the questionof interim relief. In Films Rover Ltd v Cannon Films SalesLtd,48 a decision of the High Court, the judge noted, “Theprincipal dilemma about the grant of interlocutory injunc-tions … is that there is by definition a risk that the courtmay make the ‘wrong’ decision, in the sense of granting aninjunction to a party who fails to establish his right at thetrial … or alternatively, in failing to grant an injunction to aparty who succeeds … at trial. A fundamental principle istherefore that the court should take whichever courseappears to carry the lower risk of injustice if it should turnout to be ‘wrong’ in the sense I have described.”

If this general approach of seeking whichever coursecarries the lower risk of injustice is adopted in environ-mental cases where there is a real likelihood of irreversibledamage to an important environmental interest, thereshould be fewer cases where interim relief is refused evenin the absence of a cross-undertaking in damages.

Contacts

RSPB in-house legal teamTel: +44-1767-68-0551

Maria Clarke, Public Relations OfficerPort of SheernessTel: +44-1795-59-6551

Medway Ports LimitedTel: +44-1795-59-6596

U N I T E D K I N G D O M C A S E 1




Agricultural Storage Centre CaseLow-income residents seeking to compel an agricultur-

al storage centre to reduce excessive noise, vibrations andodours overcame financial and other obstacles in pursuinga legal remedy with government and NGO assistance.


• Article 9(5)

Key issues


Case study detailsCited case name: Smith v. John Mann International Ltd

Parties involvedPlaintiffs: residentsPlaintiffs’ representation: Environmental LawFoundation (ELF), UK environmental law NGO (initial pro

bono consultation: Richard Buxton)Defendants: John Mann International Ltd, Lincolnshireagricultural storage centre operators

Background factsAn agricultural storage centre caused serious disrup-

tion of quality of life of nearby residents, due to noise,vibrations and odours from lorries, resulting in sleep dep-rivation and ill health. Local residents were on a lowincome and could not afford to pursue a legal remedy.

Procedural history Local residents approached ELF, an NGO focused on

improving access to justice in environmental mattersthrough community development programmes and a net-work of environmental lawyers and technical experts. ELFput residents in touch with an environmental lawyer whoprovided a free initial consultation. With the lawyer’s assis-tance, the residents applied for and were granted financialassistance from the government legal aid fund, to assistwith obtaining further investigations and legal advice andrepresentation in court. Residents commenced a nuisanceaction in Lincoln County Court.

Final outcome After being provided with assistance, the residents were

successful in the nuisance action before Lincoln CountyCourt. The operator paid damages and agreed to relocate.


Access to justice techniques A government-funded and administered “legal aid”

scheme provided financial assistance for legal services tothose with limited means.

In April 2000, the government’s “legal aid” scheme wasreplaced by the Community Legal Service Fund of theLegal Services Commissions. Applications for publicfunding (formerly “legal aid”) from the Community LegalService Fund are subject to strict means and merits tests,and full assistance or partial assistance may be granteddepending on an applicant’s financial circumstances. Atthe end of a case, the Legal Services Commission is obligedto recover its costs as far as possible. The commission willfirst take account of any contributions paid by the fundedclient and any costs recovered from its opponent. After

United Kingdom Case 2



that, it will recover any remaining deficit from any propertyor money recovered or preserved in the course of theproceedings. Formally, where a funded client is wholly orpartially successful in recovering or preserving goods orproperty, a “statutory charge” is enforced that convertspublic funds from a grant into a loan.

The Community Legal Service Fund has certain rules,including:

• setting financial eligibility limits in terms of disposableincome and disposable capital;

• requiring contributions from income and capital, if thedisposable income and/or capital are within certainlimits;

• defining the scope of the “statutory charge” on anymoney and property assets recovered or preservedwith the help of funding; and

• limiting the award of costs against a funded client,known as “costs protection.”

In addition to qualifying financially, an applicant mustalso show that he or she has reasonable grounds for taking,defending or being a party to proceedings, and that it isreasonable in the particular circumstances of the case forpublic funding to be granted. There are also rules relatingto the types of cases that are prioritised for funding. Thesecurrently do not include environmental issues, but doinclude health and social welfare.

Access to justice support fromenvironmental law NGOs

ELF provides information and advice on a wide range ofenvironmental problems covering pollution, planning, con-servation and health. It operates an advice and referral serv-ice providing free initial consultations and reduced cost legaland technical advice by environmental lawyers, scientistsand academics. It also operates community developmentprogrammes aimed at helping communities to mobilise

themselves in the face of environmental challenges.

Case study analysisIn general, the main obstacle relating to the govern-

ment’s financial assistance scheme is that statutory criteriafor funding are very strict. In ELF’s experience, very fewpeople have been successful in obtaining legal aid for envi-ronmental cases. However, the new Community LegalService Fund has introduced a new category of “cases of sig-nificant wider public interest,” subject to less stringent rules,which can be expected to cover more environmental cases.

The greatest obstacle faced by ELF is securing the fund-ing to keep going. It survives on grants from grant-makingbodies. Despite financial difficulties, it appreciates its inde-pendence from central and local government. It does workalongside the Citizens’ Advice Bureau, however, which is anetwork of government-funded local advice centres for cit-izens, providing free general legal advice. Citizens’ AdviceBureau advisors sometimes refer their clients with environ-mental problems to ELF.

In this case, the residents’ financial obstacles wereovercome by the assistance of ELF and the availability ofgovernment financial assistance. Residents faced addition-al obstacles in relation to the unhelpful conduct of the localauthority over licensing hours, the local governmentombudsman and the planning authority. In all, these obsta-cles were overcome with ELF’s support and the persever-ance of the environmental lawyer.

Contact

Anne L Ryan, Community Development OfficerEnvironmental Law FoundationSuite 30916 Baldwins GardensHatton SquareLondon EC1N 7RJTel: +44-207-404-1030

The Telephone CaseCitizens challenged a government environmental

impact statement (EIS) recommending the chemical spray-ing of invasive species on the basis of “plain language”requirement.



Key issuesReview of public participation in decision-making on spe-cific activities (insufficiency of EIS)Financial and other barriers (costs of expert witnesses)

Case study detailsCited case name: Oregon Environmental Council v.Kunzman, 817 F.2d 484 (9th Cir.,1987)

Parties involvedPlaintiff: Residents, South Salem, Oregon (residents) Plaintiffs’ representation: Oregon EnvironmentalCouncilDefendants: Oregon Department of Agriculture; USDepartment of Agriculture

Background factsThe gypsy moth is a European insect brought to the US

more than 100 years ago in a misguided attempt to createa domestic silk industry. Unfortunately, the moth escapedfrom a laboratory in Massachusetts and, because it had nonatural enemies on the North American continent, explod-ed in population and damaged trees — often exfoliatingentire tracts of forest and causing millions of dollars indamage. Since its release, officials tried multiple methods

to prevent a westward advance — from fire to bombingareas with airplane-loads of pesticide chemicals. Nothingworked.

Finally, a few gypsy moths arrived in Oregon on thewest coast of the US, a state where the timber industry hadlong been a major part of the economy. The US govern-ment planned to spray with the insecticide Carbaryl(Sevin), despite the failure of the insecticide to work else-where. A group of residents from South Salem, Oregon(including a family with chemically sensitive children)sought to stop this chemical spraying and to push the gov-ernment to use biological control methods instead.

In their legal action, the residents were represented bythe public interest legal organisation, OregonEnvironmental Council (OEC).

Procedural history Residents filed a complaint in the US Federal District

Court for Oregon. In the complaint, the residents assertedthat the EIS prepared by the US Department of Agriculture(USDA) in support of spraying was inadequate in two ways:

1) It failed to discuss the health risks of the pesticidesadequately.

2) The language used in the EIS was too complicated andhyper-technical for citizens — or even officials incharge of decision-making — to understand.

On the issue of language, US regulations require thatan EIS must be written “in plain language, understandableby an ordinary person.” At trial, “readability experts,”trained to assess the years of education needed to under-stand a document, testified that the average reading levelin the US is equal to the sixth year in school or about 12years of age. (Oregon was higher at eight years as the read-ing ability level). A typical paragraph in the EIS, however,required 17 years of formal education to be understood —equal to a post-graduate degree.


United States Case 1



In cross-examining an author of the EIS, OEC asked theauthor to answer how many people would get cancer fromthe spray programme by referring to the risk assessmentcontained in the EIS. The author was unable to answerfrom the text without consultation, despite the fact that hewrote the assessment. His ultimate response was, “If I had15 minutes and a calculator, I could give you the answer!”

Based on this testimony, the district court ruled infavour of the residents, holding that an EIS that could notbe understood by the chairperson of the Harvard PhysicsDepartment without 15 minutes and a calculator could notbe said to be written “in plain language.”

Initially, OEC faced financial difficulties in gatheringthe necessary experts to testify, but these difficulties wereovercome (see below).

By its ruling, the US District Court in Oregon preventedthe use of the chemical insecticide Carbaryl for control ofthe gypsy moth until new documents could be preparedthat were legally adequate. Since the insects were about toemerge from their cocoons, there was no time to delay.

The government appealed this decision before the USFederal Court of Appeals. The Appeals Court affirmed thelower court ruling in favour of the residents.

Final outcome After the US Court of Appeals upheld the lower court

decision, the government reluctantly decided to spray withthe biological insecticide Bacillus thuregiensis (B.t.). Oneyear later, the USDA proudly issued a press release, praisingits own judgement and decision-making in the use of B.t. tocontrol the gypsy moth. It proclaimed that the biologicalcontrol programme had been the most successful in history.

Related actions and campaignsResidents organised a media and political campaignagainst the spraying.

Access to justice techniques A lawsuit was filed in the US District Court in Oregon.

Case study analysisThis case reveals a problem common to environmental

decision-making — highly technical language preventingcitizen involvement and understanding. Under US law, theEIS is designed to be a means by which the public canengage in the decision-making process and later under-stand how an activity may affect their health and activities.

When the language of an EIS is so technical that it can-not be understood by the average citizen, it has the sameeffect as having not been conducted. In terms of access tojustice, being able to understand the relevant laws andguidelines is as important as their actual development.

The residents also had to overcome financial barriers inthis case. Several experts were willing to testify but couldnot afford to go to Oregon, and the residents could notafford to pay their hourly rates. The federal judge proposedthat necessary witnesses testify by long-distance telephoneinstead of travelling to Oregon. The government opposedthis, contending that cross-examination must be done inperson, but the court held that the quality of a scientist’s tes-timony and evidence has little or nothing to do with how hisface or body language appears during a court appearance.Consequently, arrangements were made for a “telephonetrial” in which nine of OEC’s 11 witnesses testified by tele-phone. The clerk of the court set up a speaker telephone inthe middle of the courtroom. When it was time for a witnessto be called, the witness gave an oath of truthfulness as usu-ally done when present in court in person. Lawyers for eachside then asked questions of the witnesses.

Contact

John E. BonineSchool of Law1221 University of OregonEugeneOR 97403USATel: +1-541-346-3827Fax: +1-541-346-1564E-mail: [email protected]

1 The guiding statute on injunctive relief, Civil Procedural Code of RA, Art.97 states that the Court, through solicitation of an interested person, under-takes remedies (injunctive measures) to ensure a lawsuit, and should takesuch matters where the failure to do so would make impossible or more dif-ficult the enforcement of a judicial act. The guarantee of a lawsuit is per-mitted in any stage of a court procedure. As a guarantee of a lawsuit thecivil code stipulates that the Court may prohibit the defendant from doingsome actions.

2 The Council of State is the main administrative court in Belgium. It judgesthe legality of administrative acts (individual and regulatory), and has thepower to annul an illegal act. Since 1989/1991 (two laws were adopted,the latter expanding the powers of the Council of State), the Council ofState also has the power to suspend an act, pending the outcome of theannulment procedure.

3 A.S.B.L. or association sans but lucratif is a non-profit organisation regis-tered under Belgian law.

4 Belgium is a federal state, consisting of three communities and three regions.Environmental competences are to a large extent attributed to the regions.

5 The law merely states that the plaintiff must have an interest, withoutspecifying the characteristics of that interest (art. 19 of the co-ordinatedlaws on the Council of State).

6 As indicated above (note 1), the Council of State did not have the powerto suspend administrative acts until 1989/1991.

7 Supreme Court, 25 October 1985, A.S.B.L. Neerpede blijft vs. Communeof Anderlecht.

8 As indicated earlier, the Council of State did not have the power to sus-pend administrative acts until 1989/1991.

9 But some inferior civil courts grant access to justice to environmentalorganisations to protect their procedural rights (right to partipate; access tojustice in front of the Council of State) if the adverse party does not asserta ‘proper’ (substantial) right.

10 Referes is the normal civil emergency procedure, referred to above,Belgium Case 1, point 4, as opposed to the “special” procedure set in placefor environmental organisations; cf. above introduction to the present case.

11 The Council of State referred implicitly to its case law of August 11,1989, n°32.953, Wellens et al., according to which national environmen-tal organisations may have a sufficient interest in challenging an adminis-trative act likely to threaten a rare protected species.

12 It should be noted, however, that the frog in question is protected underWalloon law.

13 Extraordinary legal remedy allows anybody to seek review of allegedviolations. This is done as an alternative to claiming an “action in the pub-lic interest,” because appellate bodies can easily refuse the latter claim.

14 Constitution of Georgia, Article 37: 3) Everyone has the right to live ina healthy environment and use natural and cultural surroundings. Everyoneis obliged to protect the natural and cultural surroundings; and 5)Individuals have the right to complete, objective and timely information ontheir working and living conditions.

15 Law of Georgia on Environmental Protection, article 6:

Citizens are entitled to: a) live in an environment that is harmless (safe) forhis or her health; b) use the natural surroundings; c) obtain the full, objec-tive and timely information on the state of the environment, where he orshe lives; and f) take part in decision-making process and in the examina-tion of this decision in the scope of environmental protection.

16 According to VwGO §48 paragraph 1, no. 5, the Higher AdministrativeCourt [VGH] has jurisdiction in the first instance for disputes concerningdevelopment permit procedures for waste combustion plants, both in thecase of actions for annulment and in the case of applications for interiminjunctive relief.

17 In examining legal claims, German courts generally distinguish betweenan examination of admissibility and an examination of justification. First,the court investigates the admissibility of an action or other applications.Only when the charge is found to be admissible will the court investigatethe justification of the action or application (i.e. the substantive legal situ-ation). As such, access to justice depends upon this examination of admis-sibility. It comprises certain formal requirements, such as the competenceof the court, and in particular, the right of action/right to apply. The right ofaction or right to apply (§42 paragraph 2 of the Code of AdministrativeProcedure [VwGO]) is only valid if the plaintiffs are asserting the infringe-ment of their own rights, and such an infringement of rights is at leastdeemed plausible. The plaintiff must assert the infringement of a subjectivepublic right which, in addition to protecting the interests of the generalpublic, must at least aim to protect the plaintiff’s own rights.

This approach (limiting the judicial review to an infringement of theplaintiff’s own rights) has certain implications, not only within the contextof examining admissibility, but also in the examination of justification, inthat it determines the extent of examination by the court (control breadth):The court confines itself to examining those provisions which protect thirdparties. In the case of actions for annulment, as in this instance, the courtwill annul the contested administrative act “provided the administrative actis unlawful and the rights of the plaintiff are thereby infringed” (§113 para-graph 1 of the Code of Administrative Procedure [VwGO]). Infringementsof rules not designed to protect the plaintiff will be disregarded and will notlead to the annulment of the official decision. This is of particular signifi-cance for infringements of procedural provisions that, in many cases, are


Part III: Endnotes

not designed to protect individuals but instead serve solely to protect theinterest of the general public in a meaningful and expedient organisationof proceedings.

The limitation of access to justice and the narrow scope of examina-tion contrast with the high density of control (control depth) of the judicialreview. The intensity of the administrative law review is comparatively highin Germany. It even allows the court, in some cases, to review discretionaryor prognostic decisions by the administration, whereby limits and otherstandards specified in administrative provisions are often used as yardsticks(cf. also 6A(3)).

18 If approximate values are available for the interests of the plaintiff, theseshall be decisive. The general figure of DM 8,000 cited in §13 of the CourtCosts Act [GKG] may only be used as a basis in the absence of approximatevalues. A working party of judges has prepared a catalogue of guidelinevalues for jurisdictional amounts, which is updated and amended at regu-lar intervals (printed in: Redeker/von Oertzen, Verwaltungsgerichtsordnung- Kommentar, 13th edition, Stuttgart 2000, §165, margine number 19ff.)

19 Calculated in accordance with § 11, paragraph 2 and in conjunctionwith Annex 1 to § 11, paragraph 1 of the Court Costs Act [GKG]

20 In Germany, to date, altruistic legal action by an association has onlyexisted at Länder level (see point 1 below) (i.e. only in order to appealagainst measures by the Länder administration). At the Federal level, noaltruistic legal action by an association has thus far existed under valid law(see point 2 below); at present, the Federal Nature Conservation Act onlyregulates the rights of recognised nature conservation associations to par-ticipate in certain administrative procedures and measures which involveimpairment of nature and landscapes, and the prerequisites governing therecognition of such associations (§29 of the Federal Nature ConservationAct [BNatSchG]). According to §29 of the Federal Nature Conservation Act[BNatSchG], an association is recognised as having the right to participatein development permit procedures if (1) the main purpose of the associa-tion, as defined in its Articles of Association, is to promote, for non-profitpurposes and not for a limited period of time only, the cause of nature andlandscape conservation; (2) its scope of activity covers at least the territoryof one of the Federal Länder; (3) there is sufficient evidence that the asso-ciation is able to pursue its objectives adequately (based on the type andscope of its activities, as well as on its members and capacity); (4) it isexempt from corporate income tax because of its non-profit character; and(5) entry is open to anyone who supports the association’s objectives.

However, according to a draft Act to Amend the Federal NatureConservation Act [BNatSchG] (see point 3 below), an (altruistic) legalaction by recognised nature conservation associations will be introduced atFederal level. As such, in future, and subject to certain requirements, recog-nised organisations will also be able to take legal action against variousmeasures, including those of the Federal administration, with the claim thatthe provisions of environmental legislation are infringed.

Point 1: Rights to legal action by an association are provided in the fol-lowing Länder acts: Berlin (§39a of the Nature Conservation Act[NatSchG]), Brandenburg (§65 of the Nature Conservation Act [NatSchG]),Bremen (§44ff. of the Nature Conservation Act [NatSchG]), Hamburg (§41of the Nature Conservation Act [NatSchG]), Hesse (§36 of the NatureConservation Act [NatSchG]), Lower Saxony (§60c of the NatureConservation Act [NatSchG]), Rhineland-Palatinate (§37 of the LandscapeManagement Act [LPflegeG]), Saarland (§33b of the Nature ConservationAct [NatSchG]), Saxony (§58 of the Nature Conservation Act [NatSchG]),Saxony-Anhalt (§52 of the Nature Conservation Act [NatSchG]), Schleswig-Holstein (§51c of the Nature Conservation Act [NatSchG]), und Thuringia(§46 of the Nature Conservation Act) [NatSchG]).

Point 2: Additionally in this context, associations are authorised to takeaction if they themselves are the owners of property — for example, in the areaof impact of a (potentially) environmentally harmful plant — even if the prop-erty was acquired for the sole purpose of obtaining the right to take action.

Point 3: http://www.bmu.de/fset800.htm.

21 In the case of development permit procedures, there is no need to lodgean appeal before bringing a legal action (§74 paragraph 1, sentence 2 in con-junction with §70 of the Law on Administrative Procedures [VwVfG]). This is

an exception to the normal procedure, whereby the lodging of an appeal(§68ff. of the VwGO) is generally required before bringing a legal action.

22 Renewed participation is also necessary in the case of an unaltered planif the planning authority feels it necessary to conduct fresh investigationsconcerning nature conservation, integrate the results into the procedure,and base its planning decision on this — cf. Federal Administrative Courtruling [BVerwGE] 87, 62, 70ff.

23 According to §22 of the Brandenburg Nature Conservation Act[BbgNatSchG], territories may be designated as conservation areas bymeans of legal ordinance. According to the provisions of the ordinance, pro-hibited actions include those that alter the character of the area, damage theecological balance, disfigure the landscape, impair the enjoyment of natureor otherwise contravene the purposes of special protection. The legal ordi-nance determines the subject of protection, the protective purpose, and theorders and prohibitions required in order to attain goals of protection.

Where the territory has not yet been designated a conservation area butis intended to be designated as such, an area may be temporarily protectedfor a period of three years, which may be extended by one year, if theintended protective purpose is deemed to be threatened by changes.According to the more detailed provisions of the legal ordinance or courtorder, any actions deemed likely to alter the subject of protection perma-nently are prohibited in the protected area (§27 and 28 of the BrandenburgNature Conservation Act [BbgNatSchG]). However, an exemption from theprohibitions under the Brandenburg Nature Conservation Act [BbgNatSchG]may be issued subject to certain preconditions (§19 of the BrandenburgNature Conservation Act [BbgNatSchG]).

In addition, ordinances designating conservation areas may allow forlicenses for certain activities within an area. However, the licence may beissued only if the intended action does not contravene the intended pro-tective purpose, and is insignificant (§19 paragraph 2 of the BrandenburgNature Conservation Act [BbgNatSchG]). 24 According to §29 of the Federal Nature Conservation Act [BNatSchG],an organisation is recognised if (1) the main purpose of the society, asdefined in its Articles of Association, is to promote, for non-profit purposesand not for a limited period of time only, the cause of nature and landscapeconservation; (2) its scope of activity covers at least the territory of one ofthe Federal Länder; (3) there is sufficient evidence suggesting that the asso-ciation is able to pursue its objectives adequately (based on the type andscope of its activities, as well as on its members and capacity); (4) it isexempt from corporate income tax because of its non-profit character; and(5) entry is open to anyone who supports the association’s objectives.

25 German law holds that only small projects used for public purposes canexempt land otherwise designated as protected. The land in question failedon both counts.

26 A right of standing for associations does not exist at the federal level inGermany. However, the draft of federal natural law suggests possible standingin matters involving federal projects (e.g. federal highways and waterways).

27 Given the cost and scope of the case, NABU and BUND signed a con-tract of collaboration according to which BUND would be the only partyofficially bringing the suit. The public, however, perceived both groups asparties to the suit.

28 Under German law, the Federal Administrative Court has jurisdictionover cases concerning traffic projects in the context of reunification.

29 Under German law, only development projects involving federal water-ways require public participation.

30 As evident in the The Nature Reserve Case, however, a successful rulingthat the proceedings were unlawful in the absence of public involvementwill often void the decision made at the proceedings.

31 Joined as a “friend of the defendant,” the State Highway ManagementCompany was the developer and financial manager of the proposed con-struction project. This status is used for parties who have a legitimate inter-est in the outcome of the proceeding. The court must make a resolution onaccepting someone as a friend of the plaintiff, or of the defendant.




32 In the instant matter, although it involved a highway project, an EIA wasnot required prior to construction because the law on EIAs only enteredinto force after the filing of the first application.

33 In addition to the EIA law, NGO standing may be granted pursuant toarticle 98 paragraph 1 of the Environmental Protection Act, which statesthat “associations formed by citizens for the representation of their envi-ronmental interests and other social organizations not qualifying as politi-cal parties or interest groups - and active in the impact area - shall be enti-tled in their area to the legal status of being a party to the case in environ-mental protection state administration procedures”.

34 Separately, the EPAC began proceedings against the Union of EvangelistChurches, which had not undertaken any construction activities at the timeof the trial.

35 EPAC surmounted this obstacle by taking a subpoena from the judgecontaining a signature line and bringing it to the defendant, thereby forc-ing the defendant to sign and authorise the case to begin.

36 The only exception is if the statute is contrary to an international agree-ment, including European law.

37 Under the Polish Code of Administrative Procedure, individuals can par-ticipate in proceedings as a matter of law if they are a necessary party, orhave a legal interest.

38 Relevant legislation includes articles 42 of the RF Constitution, chapter24 of the RF Civil Procedural Code; articles 11-13 of the RF Law onEnvironmental Protection; and State Environmental Expertiza Rules (regu-lated by the Federal Law on Environmental Expertiza, adopted by theRussian Parliament in 1995).

39 See Jon Gaulslaa, An overview of a breach of fundamental human rightsand internal Russian law. Working paper, University of Oslo, Norway,1988, <www.bellona.no/imaker?id=10052&sub=1>.

40 The complaint was based on articles 42, 24, 28 of the RF Constitution;on articles 11-13 and 40-42 of the RF Law on Environmental Protection; onchapter 24 of the RF Civil Procedural Code ( right to appeal to court deci-sions or actions of authorities that violate citizens’ rights).

41 This case study was drafted with input by Carlos Martinez-Camareroand Luis Oviedo-Mardones, pro bono lawyers of Ecologistas en Accion.

42 The company no longer operates in Spain.

43 Ms. Sanchis-Moreno drafted this summary, using information from<www.nodo50.org/ecoloand/aznal3.htm> and <www.seo.org/es/campa-nias/doniana.html>. Information was also supplied by Carlos Martinez-Camarero of Ecologistas en Accion.

44 According to articles 4 and 11 of the law of Ukraine on Sanitary andEpidemiological Welfare of the Population, citizens have a right to condi-tions of home and rest that are safe for health and life. Accordingly, pro-posals for the expansion and refurbishment of facilities are subject to com-pulsory sanitary-epidemiological examination. Under article 15 of thesame law, government officials are required to take into account the needto maintain living conditions most favourable for the improvement of pub-lic health in making decisions regarding expansion and refurbishment offacilities. Finally, article 5 of the law of Ukraine on City Constructionrequires that the interests of citizens who use buildings and spaces adjacentto or a part of the construction area must be provided for during theapproval process.

45 The issue of interim relief had not been referred to the ECJ and was notaddressed by the Court. The Advocate-General noted that, despite itsimpact on the enforcement of national provisions designed to implementCommunity environmental law, this issue had not been referred for guid-ance to the ECJ and advised the Court not to address it (paragraph 10 ofthe opinion).

46 Referring to C435/92 Animaux Sauvages and other cases on point, ECJnoted that article 2 of the directive, referring to economic interests, did notconstitute an autonomous derogation in terms of designating SPAs. TheCourt noted that, having regard to its judgement in Leybucht Dykes, article6(4) of the habitats directive (which by virtue of article 7 of the habitatsdirective applied to SPAs) widened the grounds for encroaching on the areaof a designated SPA to include economic and social grounds. It also noted,however, that article 7 of the habitats directive only amended article 4(4)of the wild birds directive and had not amended paragraphs (1) and (2) ofarticle 4. Thus, economic requirements did not enter into consideration atthe stage of classifying an SPA and could only be taken into account in thecircumstances set out in article 6(4) once the site was already designated.

47 Reported at [1975] 2 WLR 316.

48 Reported at [1987] 1 WLR 670, see page 680.

PA R T I I I : E N D N OT E S




Appendices


A P P E N D I C E S



Economic and Social CouncilDistr. GeneralCEP/WG.5/2001/53 October 2001Original: EnglishEconomic Commission for EuropeCommittee on Environmental PolicyWorking Group for the Preparation of the First Meeting ofthe Parties to the Convention on Access to Information,Public Participation in Decision-making and Access toJustice in Environmental Matters(First meeting, Geneva, 28-30 November 2001)

Workshop on access to justice inenvironmental matters under theAarhus Convention

Introduction

1. At their second meeting, the Signatories to the UNECEConvention on Access to Information, PublicParticipation in Decision-making and Access to Justicein Environmental Matters established a Task Force onAccess to Justice, to be led by Estonia, to support theimplementation of the third pillar of the Convention(CEP/WG.5/2000/2, para. 47). Following the sugges-tion of the Signatories, the Task Force held a workshopin Tallinn, Estonia on 17-19 September 2001. TheGovernments of Finland and the Netherlands providedfinancial assistance for the workshop to match theEstonian funds.

2. The workshop was attended by 52 participants, actingin their personal capacity, from governmental and non-governmental organizations from the following coun-

tries and organizations: Belgium, Bulgaria, CzechRepublic, Denmark, Estonia, Former YugoslavRepublic of Macedonia, Georgia, Germany,Kazakhstan, Latvia, Lithuania, Netherlands, Romania,Slovakia, Sweden, Ukraine, United Kingdom,Uzbekistan, Yugoslavia, European Commission,American Bar Association Central and EasternEuropean Law Initiative (ABA/CEELI), RegionalEnvironmental Center for Central and Eastern Europe(REC), the European ECO Forum and theEnvironmental Law Association of Central and EasternEurope and Newly Independent States (GUTAAssociation), the American Embassy in Estonia,Estonian Green Movement and Coalition Clean Baltic.

3. Mr Allan Gromov, Deputy Secretary General, Ministry ofthe Environment, Estonia, welcomed the participants tothe workshop. Estonia had been working for over twoyears to prepare the ratification of the Convention inAugust 2001 with the assistance of the Government ofDenmark to whom Mr Gromov expressed his gratitude.He also thanked the Governments of Finland, theNetherlands and the United Kingdom and ABA/CEELIwho had contributed to the workshop and the prepara-tion of the handbook and expressed his best wishes fora successful workshop.

4. Ms Sofie H. Flensborg, from the secretariat, gave a briefupdate on the status of the Convention and the currentdevelopments under its auspices. Seventeen countrieshad ratified the Convention which would enter intoforce on 30 October 2001. The first meeting of theParties would be likely to take place during autumn2002, although no decision had been taken so far. Apreparatory meeting for the first meeting of the Partieshad been scheduled for 28-30 November 2001 to whichthe results of the workshop would be reported.

Appendix AReport of Tallinn Workshop on Access to

Justice in Environmental Matters under the Aarhus Convention

text taken verbatim from a united nations document

5. The representative of the lead country for the TaskForce, Ms Rita Annus, Estonia, reminded the workshopof the mandate given to the Task Force by the secondmeeting of the Signatories. The Task Force should focuson good practice and should provide a forum forexchange of practical experience – it should not engagein refining the legal framework of the Convention. Theaim of the workshop would be to provide an opportu-nity for sharing practical experience and to refine theconcepts in the draft handbook. In addition, therewould be a possibility to discuss possible further activi-ties of the Task Force. She also introduced the agendafor the workshop and some questions that had beenprepared in advance of the workshop.

6. As a representative of the main donor for the project onthe draft handbook on access to justice, Ms Jayne Boys,United Kingdom, raised some points of importance tothe UK. She emphasized the support of the UK to theAarhus Convention and to the handbook project.Sharing practical experience on what works best hadproven to be a good method in the case of theNewcastle Handbook on public participation and MsBoys expressed the hope that the actual cases in thedraft handbook could be a useful basis for discussionsat the workshop and that these discussions would helpin shaping the handbook. She thanked the people whohad contributed to the drafting process and invitedother people to submit comments and additional mate-rial for the finalization of the handbook.

7. Mr Hannes Veinla, Chair of the Environmental LawDepartment, Faculty of Law, Tartu University, Estonia,gave a presentation outlining the issue of access to jus-tice in the Aarhus Convention. He focused on the char-acteristic features of article 9 and the purpose of accessto justice both in general and in the context of theAarhus Convention. He then raised some of the keyissues of implementation, such as institutions, standing,remedies and costs. He concluded by emphasizing thatevery person should have access to a simple, brief andeffective procedure for obtaining protection by a courtor an alternative body against acts and omissions thataffect any of the rights established under theConvention and national law.

8. Mr Stephen Stec, REC, coordinator of the project of thehandbook, gave an introduction to the process of thedevelopment of the draft handbook, underlining thefact that the time available to prepare the draft hadbeen very limited and that a lot of editing and review-ing was still necessary. The draft handbook was in twoparts, an analytical part and an appendix of case stud-ies. He explained the process for the collection of casestudies – 43 cases in total had been submitted – but alsoemphasized that more countries needed to submit

cases and that the cases also needed more work. Heexpressed his gratitude to the partner organizations inthe project, namely ABA/CEELI, the EnvironmentalLaw Alliance Worldwide (E-LAW), GUTA Associationand European ECO Forum, and to others involved inthe work of the Task Force.

9. Ms Cairo Robb, United Kingdom, reiterated the man-date of the Task Force which emphasized that it shouldfocus on practical implementation and should providemodels, concrete solutions and problem-solvingapproaches in the implementation of article 9. Shehighlighted some parts of the handbook such as thechapter on access to justice in public participationcases, the section on injunctive relief and the part onSLAPP suits. As to the case studies collected for the pur-poses of the draft handbook, article 9, paragraph 3,seemed quite lightly covered whereas many cases illus-trated issues in relation to article 9, paragraph 2. Sheemphasized that the workshop should focus on the les-sons that could be learned, both from the case studiesand from exchanges of experience, which could thenbe reflected in the conclusions of the workshop.

10. The workshop organized its discussion in three smallergroups each facilitated by one of the participants. Thesmaller groups based their discussions on the drafthandbook and on the questions which had been circu-lated in advance of the workshop. After each session,the smaller groups reported their conclusions back tothe plenary.

I. Good practices identified

11. The main conclusions of the workshop are reflectedbelow. In the discussions of the different topics, itbecame clear, taking into account the broad geograph-ical scope of the UNECE countries, that different coun-tries had different legal systems and that the contexts inwhich access to justice under the Aarhus Conventionneeded to operate were diverse in terms of legal anddemocratic traditions, as well as social, cultural andeconomic conditions. Therefore any conclusions onwhat can be learned from examples raised in the dis-cussion in the workshop need to take this into account.Furthermore, even though the workshop had a widerepresentation of UNECE countries, it is likely thatgiven the short time available, the need to simplify theexamples and problems of language and terminology,not all existing examples of good practices were actu-ally discussed and presented at the workshop itself.The following conclusions should be considered in thelight of these limitations.

A P P E N D I X A : W O R K S H O P O N AC C E S S TO J U S T I C E I N E N V R O N M E N TA L M AT T E R S U N D E R T H E A A R H U S C O N V E N T I O N


12. These conclusions are therefore a list of good examplesthat countries can use as a starting point when lookingfor examples of experiences in a particular field. Theycan then investigate in more depth how the exampleworks, for instance by taking up bilateral contact withthe workshop participant from that particular country.Furthermore, where concrete examples exist to illus-trate the good practices suggested, or other good prac-tices, these should be provided for the final version ofthe handbook, if they are not already there. Effortsshould be made to ensure that all good practices listedbelow are adequately described in the final version ofthe Access to Justice Handbook.

A. Procedures — Article 9, paragraph 1Review bodies

13. The question of the body to which a member of thepublic can appeal a refusal of access to informationwas considered in several sessions of the workshop. Inthe United Kingdom (England and Wales) a Freedomof Information Commissioner had been appointed toconsider cases of denial of full access to information.The Commissioner was open to any person and his orher decisions were binding on the public authorities inquestion. In Estonia, there was a Data ProtectionInspectorate which was an independent body provid-ing a procedure which was quick, low cost and easilyaccessible. In Slovakia, a new Commission forEnvironmental Information had been establishedunder the Ministry of Environment to consider thesetypes of cases; it had independent members of both thejudiciary and NGOs. In Ukraine, there were expedi-tious appeals procedures for these cases coupled withthe possibility of claiming disciplinary penalties. (Seealso paras. 33 to 39 below on Review Bodies.)

Time frames

14. Concerning good practices for preliminary reconsider-ation and administrative review procedures withrespect to cases concerning refusal of access to infor-mation, the question of time frames was considered.The obligation of the European Parliament, Counciland Commission to internally reconsider an applicationfor access to information within 15 days of the submis-sion of the complaint (confirmative application) wasconsidered to be good practice. Furthermore, a num-ber of countries had one month in general for adminis-trative (non-judicial) reviews; this was the case in theCzech Republic, Estonia, the former Yugoslav Republicof Macedonia and also other countries.

15. Concerning judicial review, six months from the appealto the judicial system and until the final decision by the

court, as is the target in England and Wales, seemed tobe a good example of a timely judicial procedure.Another suggested good practice would be to reducedeadlines for refusal of information to allow the appli-cant to go forward with the complaint or appeal assoon as possible.

General

16. From the discussions, it seemed that the non-judicialreview mechanisms were more efficient, timely andcheaper than court procedures, but that the court pro-ceedings should be kept in place.

B. Procedures — Article 9, paragraph 2Standing

17. There was a variety of ways in which the countries haddealt with the question of standing in relation to casesfalling under article 9, paragraph 2, consistent with theConvention’s objective of providing wide and effectiveaccess to justice. In Ukraine, every citizen could com-plain about alleged violations of rights under article 9,paragraph 2, which seemed to be good practice. In theUnited Kingdom (England and Wales), the determina-tion of ‘sufficient interest’ is left to the discretion of thecourt, which can interpret this flexibly enough toinclude not only NGOs, but also other citizens’ organi-zations and residents and community groups as well asindividual citizens.

Review bodies

18. In Denmark, the Environmental Appeals Boards wereestablished by law. These Boards were independentfrom the Ministry, delivered what were considered tobe high quality binding decisions and were thereforeconsidered to be an example of good practice. (Seealso paras 33 to 39 below on Review Bodies.)

C. Procedures — Article 9, paragraph 3Standing

19. For an NGO to have standing in cases under article 9,paragraph 3, in certain countries such as Belgium, cer-tain criteria should be fulfilled, but once an NGO hadproven to fulfil these - for instance that protection ofthe environment should be the objective stated in thecharter or the bylaw of the NGO - it would have stand-ing in all environmental cases.

20. Actio popularis existed in some countries, such as theNetherlands and Spain. The practical experiences with



actio popularis were that it was rarely used in Spain butused quite often in the Netherlands.

Constitutional rights

21. In many countries, for instance Hungary, Belgium,Czech Republic, Kazakhstan, the former YugoslavRepublic of Macedonia, Slovakia, Spain, Yugoslavia andUkraine, the public had a constitutional right to a healthyenvironment and in some countries also an obligation toprotect the environment. Following from this constitu-tional right and, where applicable, obligation, there wasa right of standing in the constitutional court in cases ofalleged violation of the constitutional right.

Criminal proceedings

22. In a few countries, like Spain and the United States, itwas possible for NGOs to challenge companies for vio-lation of the environmental legislation directly in crim-inal proceedings. In the case of Spain, the NGO mighthave to join the public prosecutor in the case but fur-ther investigation was required to clarify this point.

Citizen enforcement

23. In the UK, while the main responsibility for enforce-ment lay with the authorities, in cases of nuisance, leg-islation provided that where the local enforcementauthority had not acted, any person may ask the localcourt to make an order requiring a polluter who wascausing a statutory nuisance to abate the pollution. Ifthe polluter failed to comply with the notice, this was acriminal offence.

D. RemediesInjunctive/interim relief

24. Rules and practices on injunctive relief seemed to bevery different in different countries. Examples of goodpractice were identified in the Czech Republic andGermany, where a complaint in relation to a license orpermit automatically suspends the decision taken bythe public authority. In other countries, such asHungary, the United Kingdom and the United States,injunctive relief is possible in certain circumstances. Insome countries, the criteria are specified in the legisla-tion, whereas in others the criteria were developed incourt practice.

25. In Germany, no bond was required to obtain an inter-im injunction and the defendant was not entitled to suefor damages even if they won the case. In other coun-tries, such as the United States and the United

Kingdom, in environmental cases in the wider publicinterest, the court had discretion to require only a nom-inal bond (for example 1 USD) or no bond at all.

Timely procedures

26. To prevent lengthy court proceedings, case manage-ment techniques and timetables to be followed in courtcases had been developed in some countries, like theUnited Kingdom (England and Wales), the UnitedStates and the Netherlands.

Mechanisms to avoid abuse of the legal system

27. In some countries, such as the United Kingdom(England and Wales), there were generally very stricttime limits for bringing a case to the court where thecase involved a challenge to a decision of a publicauthority. A court claim would have to be broughtwithin three months after the final decision of the pub-lic authority.

Damages

28. The question of damages was considered to be rele-vant in some cases. In Ukraine, there was a regulationon how to calculate damages, whereas in most coun-tries, it was left to the discretion of the judges/courts.

29. The practice in Ukraine and Russia to provide for moraldamages in environmental cases was considered to bea good example of an effective remedy of redress.

Enforcement

30. Mechanisms to enforce court decisions were consid-ered to be essential. In Belgium (Flanders), there was apossibility to issue instant penalties for non-compli-ance with court decisions and in United States, eachday of violation of the court decision was considered tobe a separate criminal offence of contempt of the court.

31. Imposing criminal responsibility on government offi-cials who concealed environmental information, as forexample in Russia and Kazakhstan, was considered tobe an effective remedy as regards access to information.

32. Strict liability of entities carrying out hazardous activi-ties was felt to be important because it shifted the bur-den of causation and was an appropriate allocation ofthe burden of risk. In some cases, strict liability wascombined with requirements on operators to establishinsurance funds or other financial guarantees to ensurethat judgments against them could be enforced.



E. Review bodies and other bodiesMain review bodies

33. In most countries, the main review bodies under article9, paragraphs 1 and 2, were the courts. However, somegood examples of other independent and impartial bod-ies were mentioned in relation to article 9, paragraphs 1and 2 (see paras. 13 and 18 above). In Sweden a specif-ic Environmental Court had been established, which hadjurisdiction in environmental law cases. Independenceand impartiality of the main review bodies

34. The independence of review bodies other than courtsof law was in most cases secured by the statute or thelaw by which the body had been established, e.g. theDanish Appeal Boards. Financial independence wassecured by separate budgets for the bodies.

35. The independence of the courts was secured throughthe appointments procedures, providing job securityfor judges, (e.g. higher judges are appointed for life oruntil retirement, and may only be removed in excep-tional circumstances), providing adequate remunera-tion of judges, ensuring independence of funding forthe judiciary and the independence of the judicial hier-archy from the main decision-making governmentdepartments.

36. It was considered important that courts and other inde-pendent bodies operated transparently. This couldinclude providing annual reports on their activities,including statistics on numbers and types of cases, andpublication of their decisions, for example on theInternet.

Reconsideration by a public authority

37. The existence of a reconsideration procedure was con-sidered an important means to avoid or solve disputesat an early stage. Where a procedure for reconsidera-tion by a public authority existed in the context of arti-cle 9, paragraphs 1 and 2, it seemed to be good prac-tice that the administrative review would be performedby a different person than the one who made the deci-sion in the first instance.

Ombudsman

38. In most countries, and in the European Union, there wasan ombudsman institution, which seemed to be goodpractice, even if during the discussions it became clearthat the institution would be quite different in differentcountries. Usually, ombudsmen would be independent,appointed by the Parliament and only responsible to theParliament. In most countries, everybody had the right tocomplain to the ombudsman. In some countries, like

Hungary, there were more ombudsmen dealing with dif-ferent issues. Some ombudsmen dealt specifically withissues such as human rights and freedom of information.Other ombudsmen dealt only with cases of mal-adminis-tration. In some countries, e.g. Spain, the ombudsmanwould have to deal with all complaints whereas in oth-ers, they had the discretion to decide whether they want-ed to address a specific case or not, e.g. in Denmark.While decisions of most ombudsmen were non-binding,the publicity given to ombudsman cases and reportscould help to ensure that decisions of the ombudsmanwere taken seriously. However, the ombudsman inMoldova was able to issue legally binding decisions.

Mediation

39. In some countries, mediation existed as an alternativeto more formal action. While this was not suitable forall types of dispute, it could provide an accessible no orlow cost option in some cases. Availability of mediationservices could reduce the need for the use of more for-mal mechanisms for access to justice, such as litigationin the courts. This could be especially useful in localand neighbour disputes.

F. Overcoming financial barriersLegal aid schemes

40. Most countries had legal aid schemes to assist individ-uals when they seek access to justice before the courts,which were considered to be a good means for over-coming financial barriers. These schemes could coversome or all of the following: initial investigation costs,court fees, attorney fees for advice and for representa-tion in court, and expert fees. The assistance could befinancial or could be in the form of direct provision ofservices. In most countries, the assistance was onlyavailable to individuals, and usually would depend onthe financial situation of the applicant. In some cases,the assistance would also depend on the chances of asuccessful outcome for the plaintiff in the court case.However, a good example of extended access to legalaid seemed to be the German system, where NGOscould also apply for financial assistance in highercourts and the supreme court without having to showchances of a successful outcome.

41. Even where legal aid schemes were available, it wasconsidered important to provide other mechanisms toovercome financial barriers which still existed for thosenot eligible for legal aid.

Initial investigation prior to court action

42. A robust state-run environmental regulatory andenforcement system could play a significant role in



investigation and information gathering prior to courtactions. It was considered to be good practice that theimplementation of the access to environmental infor-mation provisions of the convention enabled citizensto obtain such information at no or low cost.

Court fees

43. In some countries, such as Spain, free access to courtswas available in some cases, whereas in others, like theUnited States and Hungary, only a low nominal fee wasnecessary to start a case in front of the court, and in yetothers, like the United Kingdom and Bulgaria, the courtfee could be waived or reduced, inter alia, dependingon the income of the plaintiff, even if the lawsuit wasunsuccessful.

Attorney fees

44. A practice of pro bono lawyers was quite developed inthe US but less available in Europe. In Hungary and theUkraine certain NGOs specialized in providing freelegal advice in environmental cases. In some countries,certain NGOs always had the right to a free lawyer. Inother countries, groups of lawyers existed to promotespecial types of cases, such as environmental cases. Insome proceedings there was no requirement to be rep-resented by a lawyer, and so attorney’s fees could beavoided altogether. This was the case with the DanishEnvironmental Appeals Boards and the NetherlandsAdministrative Courts.

Expert fees

45. Some good examples of how to overcome barriersposed by expert fees were identified. In Spain, a judgecould decide that the court itself should cover expertfees. In one of the Spanish courts, a toxicologist hadbeen employed directly by the court to help in techni-cal matters. In some countries, it was left to the discre-tion of judges who should pay expert fees. The cre-ation of new public interest networks and support forexisting ones could help to reduce the need for and thecost of experts.

General support to public interest NGOs

46. The provision of tax deduction incentives for privatedonations, as in Germany and the UK, was regarded asa good example of helping NGOs to overcome finan-cial barriers in general, which in turn could have bene-fits on access to justice. In Spain, Hungary and theUnited States, there was a possibility of morefavourable tax rules for public interest NGOs them-

selves. Some governments, for example Germany andthe Netherlands, annually gave funds to NGOs, includ-ing environmental NGOs whose projects could lead tocourt actions. In some countries, the court could orderthat the fine of a polluting company be paid directly toNGOs with the objective of environmental protection;that was the case in Germany and Uzbekistan. Someparticipants in the workshop felt that under the AarhusConvention, it should be the general objective toreduce fees or give free access to court to public inter-est NGOs.

Financial certainty and cost shifting

47. In certain cases it was not just the absolute costs ofbringing an environmental action that created a finan-cial barrier, but also the uncertainty in relation to thecosts – especially the risk of having to pay the otherside’s costs where fee-shifting was practiced. It wasconsidered good practice to be able to provide morecertainty from the outset to those bringing actions inthe public interest. In Germany, for example, therewere fixed maximums for the costs of certain types ofactions. In the United Kingdom, it was possible for ajudge to make a pre-emptive costs ruling at the outsetof a case that the applicant bringing a case in the pub-lic interest would not be held liable for the other side’scosts, even if the applicant were to lose.

48. At the end of a case, in some countries such as theUnited Kingdom and the Netherlands, the judge had adiscretion to limit the amount of the other side’s coststhat a losing applicant would have to pay in the light ofthe nature of the case and the conduct of the defendant.

General

49. A good practice to overcome financial barriers toaccess to justice in general was considered to be theuse of non-judicial mechanisms as they were generallycheaper and less time-consuming. Good quality ofadministrative decision-making reduced the needs togo court and thus the number of court cases, whichwas likely to save costs for all parties.

G. Overcoming other barriers and otherissues not addressed in other sessionsCapacity building

50. Capacity building was identified in both smaller work-ing group sessions and in plenary as key to good prac-tice in implementing the access to justice provisionsunder the Convention. This could take the form both ofcapacity building at home, and in partnership projects



with other states. Partnership projects could be partic-ularly important where states shared a reliance on aspecific common natural resource. It was felt importantthat the needs of different target groups, such as judgesand lawyers, government officials, NGOs and the gen-eral public were all addressed. Strengthening capacityin relation to access to justice under the AarhusConvention would have a positive effect on other areasof law. It was noted that a lot of the elements necessaryto increase the capacities were already available – whatwas needed was political priority and adequateresources.

Capacity building of government officials

51. The handbook was considered to be addressed to gov-ernment officials, whom it was intended to assist inidentifying possible elements of good practice.

Capacity building of judges and lawyers

52. It was felt that the knowledge of the judiciary andmembers of other review bodies should be improvedthrough training and workshops on the issues liable toarise in environmental cases. One way of ensuring thiswas identified in Sweden, which had a specificEnvironmental Court whose judges specialized in envi-ronmental cases. What was important was that trainingand, where necessary, technical assistance were avail-able to those judges likely to come across relevantcases. The UK system of justices clerks, who assist andprovide advice to Magistrates, was presented as anexample of a way of channeling environmental expert-ise into the judiciary. Training for lawyers was also con-sidered to be good practice. This could be done in con-junction with university courses, and could involve stu-dents’ participation in university environmental lawclinics as in the Ukraine. It was also regarded as impor-tant that all lawyers had access to court decisions, andit was considered good practice for courts to publicisetheir decisions, and especially for Supreme Courts topublish all their decisions, for example on the internetas is done in Estonia, Russia and the United Kingdom.

Public awareness

53. It was felt useful to share experience on public aware-ness campaigns, even if they concerned another topic.The use of electronic tools was emphasized as a goodsolution to reach the public. The public seemed not tobe aware of their environmental rights in many coun-tries. Statefunded public advice centres, such as theCitizens’ Advice Bureaux in the United Kingdom anduniversity law clinics existing in Estonia and theUkraine, could be used to educate and assist the pub-lic in relation to their environmental rights. Good prac-

tice included strategies which took a long termapproach to awareness-raising, to ensure that the effectof the awareness-raising campaign would be carriedforward. For this reason it was important to takeawareness raising seriously, to plan it carefully, and toinvolve NGOs and other community groups in spread-ing the message.

54. Fostering constructive relationships between the differ-ent actors was regarded as good practice. For example,in Kazakhstan, the Ministry of Natural Resources, theParliament and NGOs had entered into a special agree-ment on the implementation of the Aarhus Conventionand through this were able to disseminate informationquickly through these outlets. Similar agreements hadalso been signed at the local level. In Georgia, theEnvironment Ministry held regular national and region-al Saturday morning meetings with NGOs.

II. Next steps — future activities of the task force

55. The participants at the workshop felt that it was impor-tant that the work of the Task Force continue, and dis-cussed what the possible next activities should be interms of finalization of the handbook and other activities.

Handbook

56. Concerning the handbook, it was agreed that the drafthandbook should be finalized taking into considera-tion the findings of the workshop. The lead country,Estonia, would take the lead in the process of finaliza-tion. Participants would be invited to submit writtencomments on the handbook to Estonia and would alsobe invited to submit more details on specific identifiedgood solutions to certain problems. The deadline forsubmission of comments would be communicated tothe participants as well as to the Focal Points to theAarhus Convention.

Questionnaire

57. One of the findings of the workshop was that the legalsystems throughout the UNECE region were very dif-ferent and that it was therefore quite difficult to assessthe usefulness of the models and examples identified atthe workshop and in the draft handbook. Taking thisinto consideration, the lead country informed the par-ticipants of its intention to circulate a questionnaire toall countries which would help to gather general infor-mation on the legal systems of access to justice in thedifferent countries. The questionnaire would be sim-ple, easy to complete and not designed with the inten-



tion of conducting an in-depth analysis of the legal sys-tems. The survey would provide background materialwhich would help in the understanding of the differ-ences in legal systems in the region.

Other proposed activities

58. On the basis of the understanding that the handbookwould be mainly addressed to government officialsand others involved and responsible for the implemen-tation of the Convention, it was considered to beimportant for the Task Force to also assess and addressthe needs of other target groups such as the public,lawyers and judges.

59. Some participants felt that a next step could be for eachcountry to do an analysis of its legal and practical sys-tems in place on access to justice. Such an analysis

could use the findings of the workshop and the hand-book to identify priorities for improvements.

60. The lead country invited all participants to consider fur-ther financial and other contributions to the futurework of the Task Force. Some participants indicatedthat they would look into the possibility of providingsuch support.

III. Closure of the workshop

61. The participants expressed their gratitude to the leadcountry for the organization of the workshop, and thelead country thanked all participants, facilitators, rappor-teurs, the interpreters and the secretariat for their efforts.




Czech Republic: Parallel public participation in the national EIA systemSource: Pavla Jindrova, Centre for CommunityOrganising, Plzen

Editor’s note: An alternative source of authoritycan actually be established when members of thepublic set up their own parallel public participationproceedings that would meet high standards of fair-ness and accuracy. This can have a major impacton the quality of the official process, acting as a con-trol mechanism that works in many ways like tradi-tional access to justice mechanisms.

Parallel public participation in EIA —justification

A variety of domestic and international studies indicatethat the Czech EIA Act (No. 244/92 Coll.) does not requireeffective public participation in the EIA procedure. In theCzech EIA practice several limitations on public access tofull participation can be found.

1. There is no public debate about the scopeof EIA documentation (scoping).

The content of EIA documentation — alternatives andimpacts to be studied when assessing the proposal — isdetermined by the developer (developer decides on alter-natives to be studied) and the EIA expert hired by thedeveloper (deciding on the impacts to be assessed withinEIA documentation). This first and most important deter-mination of the scope of the EIA cannot be influenced byaffected municipalities or affected citizens. The competentgovernment authority has a limited right to influence thescope of an EIA, yet this right occurs only in the later stagesof the EIA process.

During five years of applying the Czech EIA Act not a sin-gle officially organised public scoping process took place.

2. The public has limited opportunities toinspect EIA documentation properly.

EIA documentation is made available to citizens for 30days for inspection, copying, and providing written sub-missions. The notification about the availability of EIA doc-umentation for “public review,” however, is done only byputting an official announcement on the noticeboard of thespecific authority — an information means that reachesextremely low proportions of local inhabitants. There is norequirement for public notification about EIA documenta-tion in the local and regional media.

Citizens who managed to learn about the opportunityto inspect EIA documentation can have access to it at thedesignated office of the municipal administration and mayprovide written comments. Interested citizens can alsomake copies of EIA documentation, but only if they canafford the copying costs, which is usually not the case.Preparing written comments on EIA documentation —usually very complex and extensive documents — after asimple inspection at the office of the administration is anextremely difficult, if not impossible, task.

The combination of the above features of “public par-ticipation” makes the thorough public review of EIA docu-mentation almost non-existent. The practice proves thatinterested citizens usually do not learn about their oppor-tunities to inspect EIA documentation and even if they dolearn about it — usually through very informal channels —they are not able to provide qualified comments on suchcomplex expert material. Both the public as well as com-petent governmental and municipal authorities thus miss akey opportunity for proper public review that could bedone in a timely and non-confrontational manner.

3. Public comments that do not providetechnical findings, but rather express valuesand general concerns, are not considered inthe review of EIA documentation.

EIA documentation and the public’s comments arereviewed as part of the preparation of the expert opinion.

Appendix BOther cases and background materials

This expert opinion is prepared by an EIA consultant whohas not take part in the preparation of EIA documentationthat he or she is expected to review. This person is select-ed by the relevant government agency and directly paid bythe developer. The consultant is not expected to evaluateconcerns that are not of a strictly technical/scientificnature. Although the EIA Act requires a social impactassessment as part of EIA documentation, this requirementis largely ignored.

This leads to many EIA experts immediately judgingnon-technical concerns about the proposal as irrelevant,and concentrating on the technical comments provided bystatutory consultant and NGOs, if they were able to pres-ent sophisticated arguments. Non-technical concerns ofordinary affected persons are openly ignored and this factis acknowledged when the findings of the EIA expert opin-ion are presented to the public.

4. Citizens are frustrated by the publichearing on the EIA expert opinion

The structure of the EIA procedure forces citizens toprovide their substantive comments at the last stage of theEIA process — within the public hearing on the proposedEIA expert opinion. Though this last stage of the EIAprocess openly reveals public concerns, it provides verylimited opportunity to influence the whole decision-mak-ing process within the EIA. Comments raised during thispublic hearing — comments which relate to alternatives,and environmental or socio-economic impacts of the pro-posed development — cannot really be considered sincethe EIA process is in its final stage.

At the end of the EIA procedure, concerned and moti-vated citizens are left frustrated, and feeling that their com-ments were not considered in an appropriate manner. Oneof the major consequences of this kind of “public partici-pation” in the Czech EIA system is thus growing publiccynicism about the value of individual contributionstowards environmental protection.

Parallel public participation in EIA — Basic principles

Based on the above observations, the PublicEnvironmental Assessment Centre (Plzen), and later also theCentre for Community Organising (Plzen), developed gener-ic guidelines for organising parallel public participation inEIA. The methodology is based on a presumption that, ifdevelopers and state agencies fail to do so, NGOs can takethe initiative and organise their own participation opportuni-ties that would provide more favourable participation.

In practice, NGOs that learn (either through formal ornon-formal channels) of the beginning of the EIA proce-dure can undertake specific steps.

1. Organise local coalition of various localinterests groups

The NGO contacts local NGOs, local members of par-

liament and other groups (labour unions, church groups,etc.) in the affected municipality and asks them to jointlyinitiate a proper public debate about the proposed devel-opment. Local institutions supporting the idea can forman informal coalition of various local interest groups withthe common aim to notify potentially affected citizens indetail about the proposal and invite citizens, externalexperts and the local media to the parallel public partici-pation opportunity.

2. Organise parallel commenting within theEIA process

The local coalition can easily organise parallel publichearings, which can be initiated at any stage of the EIA pro-cedure. Such hearings can effectively consider the scope ofEIA documentation (scoping meeting) or EIA documenta-tion itself.

The local coalition invites the proponent and theexpert who prepared the EIA report and asks them to pres-ent their findings to the public. If they do not accept theinvitation, the coalition or NGO presents the documentsabout the proposed activity and the EIA findings itself. Thehearing is typically focused on:

• health impacts;

• ecological impacts; and

• socio-economic impacts.

The presentation of each category of impacts is fol-lowed by thorough public questioning and submission ofcomments. All comments are recorded and, if necessary,voting takes place to show the level of support for thecomment among participating members of the public.

The coalition can also prepare an interactive EIA exhi-bition, including a series of posters summarising key infor-mation about the proposal and can exhibit this at theentrance to the venue place where the hearing is held.Newcomers to the process can thus quickly learn about thediscussion and provide immediate comments. The exhibi-tion also provides important background information dur-ing breaks in the public hearings.

3. Submit public comments as part of theofficial submission process

The comments gathered during the parallel public par-ticipation process are provided to the authorities in theform of an official submission.

4. Initiate the social impact assessment process

Social impact assessment (SIA) — potentially one ofthe most important tools for the evaluation of non-envi-ronmental concerns within the EIA procedure — is gener-ally not used. SIA involves the examination of a proposedactivity with respect to, among others, cultural, social, eco-

APPEND IX B : OT H E R C A S E S A N D B AC K G R O U N D M AT E R I A L S


nomic or aesthetic concerns. The NGO or the local coali-tion can request an SIA or undertake one itself.

C. Parallel public participation in EIA —Practical illustration

The above process has been tested on the proposedRecreational Park Rajcherov. This proposal was initiated inearly 1994 by a Dutch company that intended to build alarge recreational park (270 hectares) in the middle of thesouth Bohemian woodlands. The proposal was backed bya promise to invest USD 100 million into this very poorregion. The proposed development enjoyed very strongpolitical support, mainly due to the personal involvementof the relatives of the local mayor as well as of the head ofthe Regional Office. It was further backed by explicit sup-port in the local media, which responded positively to thelarge public relations campaign launched by the developer.

In spring 1994, the first information about the EIA studyfor the proposed development was leaked to the regionalmedia. Local NGOs found that the proposed park woulddestroy the habitat of nine critically endangered and 27endangered species and would have a major impact on thenatural reservation that bordered the area of the proposedpark. The location of the park — in the middle of a forest,without roads or infrastructure — would also have a majorimpact on the development of local infrastructure.

NGOs with very limited hope of successful participa-tion in the EIA at the time, asked the Centre for CommunityOrganising for help. A parallel public participation processwas suggested as the most effective option. It resulted inthe following concrete outcomes:

• Association Rajcherov was formed, consisting of 42local NGOs and local academic institutions that sup-ported a detailed public review of the proposal.

• A total of six public hearings were held to review EIAdocumentation in all concerned local communitieswithin the two-year EIA process.

• Three sociological surveys and a socio-economicassessment were prepared by the AssociationRajcherov in order to map and analyse general publiccomments about the proposal.

These outcomes proved to have numerous benefits forthe NGOs that organised the process. In particular, ithelped Association Rajcherov to:

• obtain new data and expertise;

• identify (both from the attendance at the hearing aswell as from the comments that were voiced) the gen-eral feelings of the community towards the proposal,— and make further moves based on this knowledge;

• identify key supporters and opponents of theAssociations’ actions; and

• gain substantial political power.

The parallel public participation process resulted insufficient public pressure to cause the EIA process to berestarted three times — three versions of the EIA docu-mentation were consequently produced by the developer.The developer was strongly backed by the local mayorsand the regional administration, and resisted public pres-sure to withdraw from the project.

The whole EIA process lasted for more than threeyears. It resulted in more than 300 pages of public com-ments on the proposal.

D: Parallel public participation in EIA —Further ideas

Parallel public participation in EIA works. The Centre forCommunity Organising also used this approach in urbantransport planning in Plzen and Prerov where it proved to besuccessful in both instances. In both cases, EIA documenta-tion was returned to be redone because citizens had anopportunity to express their concerns about inadequacies.

The Centre for Community Organising suggests thatNGOs, instead of being involved with the elaboration ofexpert submissions in the EIA process, should systematical-ly organise parallel public participation processes, includ-ing parallel public scoping and public hearings on EIA doc-umentation. By doing so they take the initiative and estab-lish a procedure that provides the public with far betteropportunities to participate than the standard procedure. Italso allows NGOs to control the public participationprocess and to play a part as the major organiser of publicdebate about the proposal, a position which gives thempolitical support as well as additional information that theywould never have been able to gather by their own means.

The systematic application of parallel public participa-tion can be replicated in practically every EIA system, and itpays off. However, experts are needed as it must be profes-sionally applied and systematically developed. Major NGOsthat deal with EIAs are therefore encouraged to train theirown experts to be able to use this procedure effectively.

Contact

Centre for Community OrganisingAmericka 29301 38 Plzen Czech RepublicTel/fax: (420-19) 743-1728Mobile: (420-60) 334-1434Email: [email protected]



Denmark: The ombudsman, an institution withfar-reaching consequencesSource: http://www.ombudsmanden.dk (excerpts)

Editor’s note: The Nordic countries made a joint state-ment on the applicability of the ombudsman as a mecha-nism for access to justice under the Aarhus Conventionduring the convention negotiations. While not meetingall the formal requirements of the convention, theombudsman can provide a quick, effective and inexpen-sive alternative means of achieving environmental justicein a given case.

In 1953 the Danish Constitution included a provision thatthe Folketing (parliament) should elect at least one ombuds-man. Motivated by the growing influence of the civil service,the aim was to create improved guarantees for “the properexercise” of the state’s civil and military administration. TheConstitution empowered the Folketing to lay down moredetailed rules for the activities of this new institution.

The institution of the Danish ombudsman had its originin the Scandinavian social structure of the 1950s. The rela-tionship between citizen and state was predominantly gov-erned by laws passed by the Folketing. The slow legislativeprocedure came under pressure from an increasingly com-plicated society, and gradually the Folketing had to leavemore and more decisions to the public administration.

A crucial aspect of the institution of the ombudsmanwas that, from the very outset, the Folketing allowed theoffice to adapt to developments, thus preventing it frombecoming set in a 1950s form of regulating relationsbetween state and citizens. The intention is to adapt theombudsman and his functions to the latest developmentsin the relationship between the public administration andcitizens. If the ombudsman’s control is to be effective andbeneficial to citizens, it must be extended to all authoritiesthat regulate the circumstances of citizens.

Between Folketing, public administration and citizens

The Danish ombudsman occupies a position midwaybetween the Folketing, the public administration/ministersand citizens. With limited legal powers, the ombudsman issupposed to ensure the “proper exercise” of administrativepowers. To understand how it was possible for theombudsman to become an important part of Denmark’sjudicial setup, it is necessary to look at the post’s relation-ship to the Folketing, the public administration and citizens.

The ombudsman and the Folketing After each election, the new Folketing elects an

ombudsman who is to “oversee the administration” on itsbehalf. The Folketing may dismiss the ombudsman if itloses confidence in him or her, but this has never occurred.

The ombudsman has to report to the Folketing, both in theform of an annual report, and in connection with specificcases of errors or deficiencies of major importance.Furthermore, the Folketing lays down the general provi-sions governing the ombudsman’s activity.

On the other hand, the Act states that the ombudsmanis independent from the Folketing, for instance, whendeciding whether complaints are to be subjected to actualinvestigation. The ombudsman is not allowed to be a mem-ber of the Folketing. He hires and fires his own staff and hemay request to be relieved of office at six months’ notice.

Formally, the ombudsman has limited powers. TheFolketing was unwilling to bring in an institution that coulddefer or alter the decisions of the public administration. Theombudsman’s supervision is subsequent, and the office’strue power springs from its relationship to the Folketing.

Furthermore, the Folketing has largely delegated thetask of giving substance to the concept of “the proper exer-cise of administration” to the ombudsman. Through com-ments, the Ombudsman has tried to develop general basicprinciples for the correct exercise of administration. Theombudsman has laid down requirements for the handlingof cases and these have later been incorporated intoDanish Administration Acts. The ombudsman has also indi-cated how the public administration is to arrange its workso that the processing of cases does not drag on unneces-sarily, as well as generally how the administration ought toact to strengthen its relationship of trust with citizens.

In interpreting laws, the ombudsman has alwaysstressed the intentions of the Folketing. Great importancehas also been attached to human rights and the DanishConstitution. In specific cases, the ombudsman had anopportunity to express an opinion about the general prac-tice of Danish government agencies. In a case concerningJehovah’s Witnesses, the ombudsman pointed out that, inareas covered by constitutional law, there is a duty upon theauthorities when using their discretion to take into accountcitizens’ exercise of their liberties and, to the greatest extentpossible, to avoid placing obstacles in the way of liberty.

The ombudsman and citizens Although the Act refers to the parliamentary ombuds-

man, it is in many contexts more appropriate to speak ofthe citizens’ ombudsman.

For citizens, the protection provided by the ombuds-man is primarily in freedom to complain. It costs nothing,and there are very few conditions to be met. Decisionsmust be final before a complaint can be made, and com-plaints, which must not be anonymous, must be submittedto the ombudsman within one year.

The ombudsman decides whether to actually investi-gate a complaint and, if so, what to investigate. In otherwords, the ombudsman is not bound by the complainant’sallegations. The ombudsman then starts to proceed in thematter, unless the complaint is groundless or trivial, assess-



ing the complaint and the prospects for being able to helpthe complainant. If there is no such prospect and, in addi-tion, there is no sign that the authorities have dealt with thematter wrongly or have made an incorrect decision, theombudsman may dispense with the lengthy process of ask-ing the authorities for a statement. The ombudsman thenwrites directly to the complainant explaining why no fur-ther action is being taken in the matter.

After deciding to investigate a case, the ombudsmansends the complaint to the authority concerned asking forthe relevant documents to be sent along with a statement.The complainant is given an opportunity to comment onthe statement from the authority, after which the case isready for the ombudsman’s assessment. Citizens may begiven free legal aid if litigation is inevitable and theirincome is low.

The ombudsman and the public administration

The public administration primarily interacts with theombudsman during the investigation of complaints.Through these complaints, the authorities are given theopportunity to get a thorough and impartial legal appraisalof their decisions, their handling of cases, and the adminis-tration in general. The ombudsman’s efforts to developgeneral principles for public law have proven to be impor-tant to the public administration.

Investigations made on the ombudsman’s own initiative

The Folketing has given the ombudsman the liberty toinitiate investigations independently. In these cases, wherethere is no complaint by a citizen, the ombudsman mayhave identified issues in the public domain, sometimes asa result of press reports, which require closer investigation.In 1993, “own initiative” investigations totalled 139.

“Own initiative” cases may aim to investigate whetherit is necessary to help a citizen in a particular case. Theopportunity to initiate cases has been used by the ombuds-man, particularly for investigating more general questionsor issues of principle that complaint cases do not necessar-ily raise. In this way the ombudsman has had the opportu-nity to keep track and influence the general developmentof relations between the administration and citizens. Inrecent years, “own initiative” investigations have beenextended in a way that meets the need for general investi-gations to a greater degree.

For example, in 1988 the ombudsman asked theDepartment of Private Law for access to 70 files. TheDepartment of Private Law deals with administrative mat-ters concerned with, for instance, separated and divorcedparents’ access to their children and with possible mainte-nance obligations. In these 70 cases, the authorities hadmade almost 150 decisions.

The ombudsman’s investigation was concluded with a

full report of 130 pages. Citizens, the Department of PrivateLaw and other authorities were able to read about theombudsman’s scrutiny of the legal problems and issuesinvolved. The ombudsman also made conclusions aboutthe way the authorities had dealt with the cases and abouttheir procedure in general.

The report concluded that the Department of PrivateLaw had decided the cases in accordance with the spiritand letter of the law, and that the administration had madean effort to make allowance for the personal situation ofthe parties as was required in cases of this character. Thereport was well received by the public administration andby politicians, and projects of this kind have since becomean important part of the ombudsman’s input.

Estonia: Estonian Society for Nature Conservation and Estonian Green Movement v. the Ministry of EconomySource: Press release (edited)

Editor’s note: This case, started too late to be includedin the case study section, is one of the first to seek to applythe Aarhus Convention directly in a court of law.

March 27, 2002, TallinnA court case began today in the Tallinn

Administrative Court between two environmental NGOs,the Estonian Society for Nature Conservation andEstonian Green Movement, and the Ministry of Economy.

The essence of the case is the inactivity of theMinistry, which refuses to carry out an environmentalimpact assessment of the Action Plan for Estonian Oil-shale Based Energy for 2001-2006. According toEstonian law the assessment should be done for anybig programme that could have nationwide or regionalenvironmental impact.

The most significant is that the Court has agreed tobegin the procedure on the basis of the Convention onAccess to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters(Aarhus Convention). The court recognised that,according to the convention, the environmental NGOswould not have to prove that their rights or interestshave been violated.

Most probably this court case is a world precedent,because the Convention only entered into force onOctober 30, 2001. It should be mentioned that onlytwo European Union countries have ratified the con-vention to date.

The fact that the Court agreed to process the caseon the basis of the Convention, does not mean victoryyet. Discussion about the interpretation of the law will



follow whether or not the verdict will need proof of theviolation of the rights of the NGOs. This will be thenext step in creating a precedent.

European Commission: Appeal of Friends of the Earth to the European ombudsmanSource: Peter Roderick, Friends of the Earth

In 1999, Friends of the Earth asked the EuropeanCommission (DG XI) for copies of two studies that hadbeen conducted for the Commission into the UK’s transpo-sition of the habitats directive and various waste directives.The Commission provided copies of the studies, but withpage after page blacked out in thick ink.

Friends of the Earth appealed to the secretary-generalof the Commission, as required by the Code of Conductconcerning public access to Commission and Council doc-uments attached to Commission Decision 94/90/EC. Thesecretary-general upheld the Commission’s refusal to pro-vide full copies.

The argument of the Commission was that the docu-ments fell within the exception of “protection of the publicinterest (court proceedings, inspections and investigations).”In respect of the study on waste directives, DG XI also arguedthat the exception “for the protection of the Commission’sinterest in the confidentiality of its own proceedings”applied, but the secretary-general dropped this argument.

In 2000, Friends of the Earth appealed to the Europeanombudsman against these refusals. It argued that the doc-uments were studies, not investigations, and that the dem-ocratic accountability of the Commission meant that thepublic should be entitled to see an objective independentstudy on compliance with environmental law conductedfor it. It also argued that the Commission was acting incon-sistently with the Aarhus Convention.

In March 2001, the ombudsman ruled that theCommission was guilty of maladministration in refusing toprovide full copies of the report and gave the Commissionuntil June 30, 2001 to respond. The ombudsman ruled that“it is reasonable to regard these reports as Commissiondocuments, to which the rules of Decision 94/90/ECshould apply,” and went on to state as follows:

“An interpretation of the scope of ‘inspections andinvestigations’, as suggested by the Commission, couldpreclude public disclosure of any document held bythe institution which might be relevant for its role ofguardian of the treaty under Article 211 of the ECTreaty. Accordingly, whole categories of documentswhose content relates to member states’ compliancewith Community law, and hence which may give fac-

tual or legal elements to the Commission in order toconsider instituting infringements in the future, couldbe barred from public access …

The Ombudsman therefore considers that the excep-tion based on inspections and investigations shouldonly be applied when the requested documents havebeen drawn up in the course of an investigation con-nected to an infringement proceeding. The two reportsin this case were commissioned prior to any investiga-tion, and with a view to solely considering the optionsavailable to the Commission (paragraphs 2.6 and 2.7).”

Further informationThe ombudsman’s press release can be found at:

<www.euro-ombudsman.eu.int/release/en/2001-03-20.htm>. The ombudsman’s draft recommendation can befound at: <www.euro-ombudsman.eu.int/recommen/en/000271.htm>.

This case illustrates the continuing democratic deficit inthe Commission, and the importance of the public contin-uing to seek to hold it accountable.

Court of Justice of the EuropeanCommunity: Stichting GreenpeaceCouncil et al v. EuropeanCommission (C-321/95P)

The European Commission decided to finance theconstruction of two fossil-fuelled power stations on theCanary Islands. A group of applicants, includingGreenpeace, brought an action under article 230(4) of theEC Treaty, contesting the legality of the operations inSpain, as no EIA had been conducted as required by EUlaw. The applicants pointed out that the Commission wasrestricted from financing activities that contravenedCommunity legislation and policies under article 7 ofCouncil Regulation 2052/88.

The Court of First Instance, Case T-585/93, [1995] ECRII-205, ruled that the applicants had no standing to bring anaction under article 230(4) as they had no individuallyrecognisable concern distinguishable from that of thewhole community. The Court ruled that an associationcould contest a Community act only if it represents indi-viduals who themselves fall under the scope of article230(4), or if special circumstances exist that sufficientlyindividualise the association.

On appeal before the Court of Justice, Case C-321/95,[1998] ECR I-1651, the applicants claimed that the test usedby the Court of First Instance should not be used in casesrelating to environmental matters, as the environment is acommon good. Alternatively, they argued that the right tobe informed and to participate in an EIA procedure, which



had been abrogated under the circumstances of the case,gave them an individual right to go to court. The Court didnot accept these arguments, upheld the decision of theCourt of First Instance, and furthermore stated that therights under the EIA directive would be fully protected bythe national courts of Spain.

The Greenpeace case met with substantial criticism.For a summary of the issues involved and a discussion ofthe questions raised, see Report: Complaint proceduresand access to justice for citizens and NGOs in the field ofthe environment within the European Union (TilburgUniv, MinVROM Netherlands, April 2000), pp 37-40.

France: French NGO celebrates Natura 2000 court rulingSource: Environment Daily 1029, July 12, 2001

Editor’s note: This case could potentially fall underAarhus Convention article 9(3) and involves an attemptby a French NGO to overturn a decision in contraventionof EU environmental law.

France’s highest administrative court has blockeddevelopment of a Natura 2000 candidate site in Alsace. Theruling, announced on Wednesday, represents the first timethat the French legal system has recognised the jurisdictionof the 1992 EU habitats directive.

The ruling suspends authorisation granted earlier thisyear by the agriculture ministry to plant vines at a site in theHigh Rhine region and is being interpreted as a blow tovarious parties, including hunters and landowners, whohave been fighting the Natura 2000 process.

The agriculture ministry argued that developmentplans should not be blocked because the site in question isone of several hundred whose nomination for inclusion inthe EU-wide Natura 2000 conservation network wasrecently struck down on a technicality (ED 25/06/01<www.environmentdaily.com/articles/index.cfm?action=article&ref=10165>).

The court dismissed this argument, concluding that thescientific basis of the environment ministry’s site nomina-tion was sound, and therefore the technical hiccup in thenomination process was not of consequence.

The case was brought by France NatureEnvironnement (FNE), a network of environmental NGOs.An FNE spokesperson told Environment Daily that the rul-ing was an important step toward improving France’simplementation of the habitats directive.

ContactsCouncil of State www.conseil-etat.frTel: (33-1) 4020-8000

FNE www.france-nature-environnement.orgTel: (33-2) 3862-4448

The press release may be found at <www.france-nature-environnement.org/pdf/CP2%20conseil%20natu-ra2000.pdf>.

Hungary: The protected forests caseSource: S. Stec, work in progress (footnotes omitted)

Editor’s note: This case is an example of the role ofjurisprudence in particular cases brought by NGOs andenvironmentally aware members of the public, in thedevelopment of interpretations of environmental rights. Itis relevant to article 9(3) of the Aarhus Convention.

The protected forests case before the ConstitutionalCourt of Hungary had its origins in the process of privati-sation of nationalised property following the changes in1989. In 1992 the Hungarian parliament passed a law onthe privatisation of agricultural land that contained provi-sions concerning the break-up of agricultural cooperativesand the distribution of land to their members. The law pro-vided for various exceptions to what was to be privatised.Non-privatisable lands included national parklands, areasprotected by international agreement, and other protectednatural territories, unless such lands were already undercertain forms of cultivation. Those forms of cultivation thatput protected lands back into the privatisable categoryincluded many forms of agriculture and viniculture, but didnot include cultivated forests. Farmers who wished to gainownership of cultivated forests under the regime reacted tothe legislation by lobbying for inclusion of cultivatedforests among the types of cultivated lands that could beprivatised even while protected. Parliament gave in to thefarmers and amended the law to allow cultivated forests tobe privatised as well. This prompted a group of unnamedcitizens to petition the Constitutional Court to declare thatthe amendment to the law violated the two environmentalrights found in the Hungarian Constitution.

The first of these constitutional provisions, article 18,was a conventional declaration of the right to a healthyenvironment. The second, article 70/D, provided for ahuman right to the highest possible level of physical andspiritual health. In a well-reasoned decision, the HungarianConstitutional Court interpreted these two constitutionalrights as “third-generation” constitutional rights. Takentogether they were declared by the court to be neither col-lective nor individual rights. While not basic rights, neitherdid they simply impose a constitutional task on the statethat the state could implement freely as it wished. In choos-ing the term “third generation constitutional right,” the courtdrew an analogy to the right to life on the basis that envi-ronmental resources are limited, most environmental dam-



age is irreversible and the environment is the basis for alllife. Articles 18 and 70/D must therefore be interpreted, inthe opinion of the court, in a way that places an obligationon the state to provide legal and institutional guarantees foran objectively high level of environmental protection. Thus,if the state guarantees a certain level of environmental pro-tection at any time, it cannot be withdrawn arbitrarily. Suchprotections could only be diminished in proportion toupholding other constitutional rights or values. This fur-thermore implied, in the court’s view, that the rights foundin the Constitution, in an appropriate case, could be thebasis of a cause of action to require the state to maintainhigh objective standards of environmental protection.

In the case at hand, the interest of the members of thecooperative to receive compensation through ownershipwas not comparable to the interest in protecting the forests.The court did mention that the ownership of the forestswas not the key issue. In principle the forests could be pri-vatised, but if so the obligations of the owners would needto be strengthened, and the state would have to continueto guarantee the objectively high level of protection of theforests. The fact that no provision had been made in theamendments to offer such a level of protection once theforests passed into private hands was evidence that thestate had failed in its basic responsibility of ensuring anobjectively high level of environmental protection. Thus,the court invalidated the amendments.

The opinion distinguished between an individuallyenforceable basic right and its “opposite” — an affirmativebut generalised duty of the state. But it did more than this,asserting a “third way,” the third generation constitutionalright that gives some constitutional substance to the stateduty — that is, some oversight by the people over how theduty is carried out. The right to a healthy environment,according to this view, is “actually the right of an individ-ual to demand the maintaining of ecological standards, setup by law.” Through appeal to such third generation con-stitutional rights, the public thus may influence particularobjective means for environmental protection in variousways. These include direct challenges to the constitution-ality of laws as in the present case, but also in other ways,such as participation in environmental decision-makingand standard-setting by authorities.

The Hungarian Constitutional Court has extremely lib-eral standing rules. Any individual may bring an actionbefore the court to challenge the constitutionality of anexisting or newly enacted law at any time, regardless ofcase or controversy requirements. In this case the initiatorof the suit — an unnamed group of environmentalists —stood far in the background of what was in fact a declara-tory judgment. In other jurisdictions, standing can be anissue requiring intensive scrutiny. Hungary’s open standingprovision allows for quick, direct and inexpensive accessto the Constitutional Court.

Hungary: The ombudsman as a toolfor access to justice using anindependent and impartial bodyestablished by lawSource: Magdolna Toth Nagy, Regional EnvironmentalCenter for Central and Eastern Europe

In Hungary, Act LXIII of 1992 on the Protection ofPersonal Data and Disclosure of Public Interest establishedthe institution of the data protection commissioner (orombudsman) to protect the constitutional rights of citizensto the protection of personal data and to oversee the dis-closure of data of public interest. The ombudsman is elect-ed by the parliament for a period of six years. The first elec-tion took place in 1995, the second in 2001. The ombuds-man’s duties include, inter alia, the monitoring of theimplementation of laws on data-processing and of the con-ditions for the protection of personal and public interestdata. The ombudsman must also give opinions or presentproposals on draft legislation or the modification of legis-lation related to data protection or freedom of information.His opinion is also sought for each category of officialsecrets, observing whether or not the processing of data isunlawful and, if so, requesting the data controller to dis-continue the processing of the data. The data controller isobliged to take the necessary measures without delay andto inform the ombudsman in writing and publicly within 30days of the occurrence of unlawful data-processing, theidentity of the data controller, the categories of dataprocessed and the status of the unlawful processing. He orshe also examines any complaints lodged, and is entitled tochange the classification of secrets, to request informationon any matter, and to inspect any documents and records.The authorities have to report annually to the ombudsmanon requests for information that have been denied and thereasons for such refusal.

Anyone may approach the ombudsman with a claimthat his or her rights were violated through the processingof personal data, or through access to data of public inter-est, or in the case of a potential violation, except when aparticular case is in the course of judicial procedure. If hisor her request or appeal is refused, the applicant may stillappeal to the court.

The opinions or recommendations of the ombudsmanare not legally binding. However, they constitute an impor-tant tool to remedy infringements of rights to public accessto information. The authorities responsible for handlingthe data or information are obliged to cooperate with theombudsman to remedy an unlawful situation. If they donot cooperate, the ombudsman has a right to appeal totheir higher level administrative authority. Through mak-ing unlawful actions or activities public, the ombudsmanalso uses the tool of transparency and publicity to put pres-sure on those not respecting the legal requirements in



question. The advice of the ombudsman is usually fol-lowed by measures taken by the public authorities: forexample, correcting the unlawful acts or activities oramending their regulations and laws. If the advice is notfollowed, the unlawful act may be challenged in court.

In the past five years, the ombudsman has been askedseveral times to give an opinion about the interpretation of“public interest information.” Some of these cases arebriefly described below. The recommendations suggest apractice that is governed by a presumption in favour of thedisclosure of information.

Recommendations on handling data relatedto environmental protection fines

In 1997, a group of citizens lodged complaints with theombudsman regarding an information request on datarelated to environmental protection fines levied by envi-ronmental inspectorates. The applicants requested infor-mation from 12 local inspectorates, employing an identicalrequest for the total amount of fines levied in 1997, howthe money was spent, the names of the fined companies,and the amount of the fine imposed in each case. Theresponses, however, were quite diverse. The majority ofthe inspectorates declined to supply some of the data,either without specifying any legal grounds for the refusalor citing the civil code on personal rights and referring tobusiness secrets. The entirety of the information was dis-closed only by one authority. The fees charged for supply-ing the data also varied to a maximum of 1,500 percent.

The ombudsman, based on Act No LXIII of 1992 on theProtection of Personal Data and Disclosure of PublicInterest, made it clear in his findings that the requestedenvironmental information was “data of public interest”that could be disclosed to anyone. He stated:

“[B]usiness secrets” mean any fact or information …related to the management of business affairs whichthe parties concerned have an appreciable interest inkeeping confidential …. The business secret is a legalinstrument in the service of protecting fair competi-tion. The accessibility of information on hazardscaused by violating environmental protection regula-tions … forms an integral part of the constitutionalfreedom of information. The public disclosure of awell-defined range of pertinent information is of vitalinterest. The decisions of bodies charged with moni-toring the legality of business enterprise constitutedata of public interest. Information relevant to activi-ties violating provisions in force and inflicting seriousdamage on the environment amounts to “certifiedpublic data” not simply because such activity mayhave an impact on the population irrespective ofnational borders … but also because in a remarkablenumber of cases it implies irreversible harm or damage

that can only be repaired at an extraordinary cost.Citing business secrets should not be allowed to giveimmunity to those guilty of violations.

In his recommendation, the ombudsman proposed thatthe National Environmental Inspectorate and the 12regional environmental inspectorates should regularlypublish or make publicly accessible the list of those com-panies causing damage to the environment, including thetype of pollution and the amount of fines imposed. Sincethe regional inspectorates have to report every quarter tothe central authority on such activities and on the finesimposed, this information is available. Consequently,when supplying this information, they should not charge afee in excess of covering copying and mailing costs. TheMinistry of Environmental Protection and RegionalDevelopment and the local governments are obliged toprovide information on the spending of collected finesperiodically, as well as upon request.

Recommendation on the publicity ofconcession contracts

Another example was related to a submission of anNGO (the Hungarian Automobile Club’s Legal ProtectionCommittee) on whether the information contained in aconcession agreement constituted data of public interest.The contract, signed by the Ministry of Transport,Telecommunications and Water Management and the FirstHungarian Concession Motorway Rt. (ELMKA), involvedthe construction and operation of the M1/M5 motorway.The applicant believed that the business interests of eitherthe ministry or the company could not take precedenceover the interests of disclosure.

The ombudsman asked the minister of Transport,Telecommunications and Water Management to explainhis position on the issue. On behalf of the minister, theadministrative state secretary explained that the concessionagreement was an institution of public law. As such, itcould not be regarded as data, and did not fall under ActLXIII of 1992. In the official’s view, concession agreementswere governed by the same rules that apply to any othertype of contract: the information contained in them canonly be disclosed to a third party when there is no contraryprovision in the contract. The motorway tender contractincluded a provision that the information contained in itwas a business secret.

The ombudsman emphasised that the right to accessdata of public interest and the right to freedom of informa-tion are fundamental constitutional rights. Citizens and theirorganisations cannot monitor local government functionsunless they are in possession of an appropriate measure ofinformation on how they are run. The right to access dataof public interest and the right to the protection of businesssecrets may come into conflict when public bodies enterinto business relations with private companies. Thus, in



their management of public funds, the bodies of the stateand local government often come into possession of busi-ness secrets. In such cases priority must be given to disclo-sure to the extent that it allows for transparency in the useof public funds. Private companies applying for funds orentering into any other business transaction with the stateor local government that involves public funds, have nochoice but to accept restrictions on their business secrets.

The ombudsman proposed clarifying amendments to theConcessions Act that would make it clear to all parties to theconcession procedure, including bidders and bodies of stateor local government, which data they are liable to disclose.

The ombudsman invited the minister of Transport,Telecommunications and Water Management to guarantee tothe plaintiff and any other interested person the opportunityto inspect the terms of the concession agreement in question.

For further informationSee Cases of freedom of information: The first three

years; 1998, and Act No LXIII on Protection of PersonalData and Disclosure of Data of Public Interest on the web-site of the Hungarian ombudsman at <www.obh.hu>.

Italy/Council of Europe: Guerra v. Italy, European Court of Human Rights Source: ECHR case summary (edited)

Editor’s note: Judicial interpretation of the right torespect for private and family life on the European levelhas brought it increasingly close to interpretations of theright to a healthy environment on the national level (see,for example, the protected forests case).

The case concerned article 8 of the EuropeanConvention on Human Rights and a family who lived in thevicinity of an industrial facility that produced fertilisers.Authorities failed to respond to several requests for infor-mation concerning the environmental risks faced by thefamily. The court held that the inactivity of the authoritiesviolated the right to respect for private and family life pro-tected by article 8.

The Ministry for the Environment and the Ministry ofHealth had jointly adopted conclusions on the safety reportsubmitted by the factory. They had provided the prefectwith instructions about the emergency plan, which he haddrawn up in 1992, and measures required for informing thelocal population. However, the district council concernedhad not received any document detailing the conclusionsby December 7, 1995.

In this case, the applicants had waited until productionof fertilisers had ceased in 1994 for essential informationthat would have enabled them to assess the risks they and

their families might run if they continued to live atManfredonia, a town particularly exposed to danger in theevent of an accident at the factory.

In its decision, the Grand Chamber of the EuropeanCourt of Human Rights held that severe environmental pol-lution might affect individuals’ well-being and preventthem from enjoying their homes in such a way that wouldaffect their private and family life adversely. The directeffect of toxic emissions on the applicants’ right to respectfor their private and family life meant that article 8 wasapplicable.

Applicants complained not of an act by the state but ofits failure to act. As the objective of article 8 was essentiallythat of protecting the individual against arbitrary interfer-ence by public authorities, it did not merely compel the stateto abstain from such interference — in addition to this pri-marily negative undertaking, there might be positive obliga-tions inherent in effective respect for private or family life.

In the present case all that had to be ascertained waswhether national authorities had taken the necessary stepsto ensure effective protection of the family’s right torespect for its private and family life. The court unani-mously concluded that the respondent (the state) had notfulfilled its obligation to secure the applicants’ right torespect for their private and family life.

Romania: Saran v. Public HealthInspectorate of Dambovita Source: original court record

Editor’s note: The Aarhus Convention, with its broaddefinition of environmental information, may help to shiftthe burden of establishing what is public information fromthe member of the public, as exemplified by this case, to theauthority refusing to disclose the information.

Dambovita Tribunal, Section for Commercial andContentious Administrative Matters, Decision No. 759,April 30, 2002:

Petitioner Teodor Saran of Targoviste brought a caseagainst the defendant, the Public Health Directorate ofDambovita, complaining that his right to free access toinformation of public interest was violated by the defen-dant’s refusal to provide information on request. Petitionerrequested a copy of the original sanitary authorisation ofthe functioning of the source of drinking water in Ratei,county of Dambovita, by the Commercial Company forCommunal Housing and Transport Management, pursuantto provisions of articles 3 and 6, and other provisions ofLaw No 544/2001 and the Constitution.

The answer given by the defendant (by letter) was thatit does not communicate such information “upon therequest of natural persons.” Moreover, the authorisation offunctioning is an administrative document of an individual



nature and does not belong to the category of informationof public interest.

The court held that information of public interestmeans any information that regards the activities or resultsfrom the activities of a public authority or a public institu-tion, irrespective of the form, means or manner of expres-sion of the information. Such information is listed in article5 of the law, which does not provide the cases in which arequest is made for the issuing of authorisations, suppliesof services and any other requests except information ofpublic interest.

Because issuing a copy of the original of the sanitaryauthorisation of functioning does not belong to informa-tion of public interest, the tribunal rejected the petition-er’s request.

Slovenia: Constitutional Court casebrought by the National Associationof EcologistsSource: Milada Mirkovic, lawyer

Editor’s note: The Slovenian Constitutional Courtrecognised the standing of an environmental NGO andindividuals to challenge the legality of a development planat least in part upon an interpretation of a duty to protectthe environment. The case is a rare example of applica-tion of access to justice under article 9(2) of the AarhusConvention with respect to optional provisions, in this casestrategic environmental assessment under article 7, as wellas article 9(3) (direct enforcement).

(Decision No U-I-30/95-26, 1/15-1996). An NGO,Drustvo ekologov Slovenije, and 25 individuals began aprocedure before the Constitutional Court for evaluation ofthe constitutionality and legality of a development plan of asmall business/manufacturing zone in the hinterland ofLake Bled. The Court recognised the legal interest of theNGO on the basis of the Environmental Protection Act, arti-cle 4(3) (Official Gazette of the RS No. 32/93), which pro-vides that the protection of the environment is, inter alia,the responsibility of professional and other NGOs for envi-ronmental protection. The Court held that the NGO wasresponsible for environmental protection under the lawbecause it was defined in its statute as a professional asso-ciation whose members are involved in expert work in theresearch of ecosystems and their protection, as well as inpedagogical work and activities on the popularisation ofthese issues.

The court recognised the legal interest of the individu-als on the basis of the constitutional right to a healthyenvironment in which to live (Constitution, article 72).The Court held that every person has an interest in pro-tecting the environment, and that this interest is not limit-

ed to the environment close to the place where he/shelives or to prevention of imminent harm.

The court invalidated the development plan of thesmall business/manufacturing zone in question because itfound it was not in accordance with the territorial/spatialmedium-term plan of the municipality and with the long-term plan of the state. There were also some proceduralfailures in the adoption of the development plan.

Contacts

Constitutional Court of Slovenia <www.sigov.si/us/eus-ds.html>

Spain: Spanish Court orderstelephone mast removalSource: Environment Daily 1020, June 29, 2001

“A Spanish mobile telephone operator is to appealagainst a judge’s decision last week ordering theremoval on health grounds of a mobile phone trans-mitter from the roof of a residential building. Thoughtto be the first decision of its kind in the EU, the judge-ment made at a court in Bizkaia, northern Spain,requires mobile telephone operator Airtel to removethe equipment until it can demonstrate that the radia-tion emitted poses no health risks to residents in thebuilding. The judge decided that ‘reasonable groundsexist for suspecting that the radiation from the trans-mitter is not innocuous to people permanentlyexposed to its effects.’ Residents had previously agreedto installation of the equipment in return for financialcompensation from the company. A spokesperson forAirtel told Environment Daily that the company willappeal against the verdict ‘to the Supreme Court if nec-essary to prevent the decision establishing a legalprecedent.’ A company statement described the deci-sion as ‘the first time in Europe a court has ordered theremoval of a legally-installed transmitter.’ A spokesper-son for GSM Europe, which promotes internationalmobile telephone communication, said she had noknowledge of any other European court passing a sim-ilar judgement.”

Contacts

AirtelTel: (34-60) 713-3333

GSMTel: (44-20) 7518-0530



United Kingdom: R v. Sec of Statefor Env. Transport and the regionsand Midland Expressway Ltd., ex parte Alliance Against theBirmingham Northern Relief Roadand othersQueen’s Bench Division, July 29, 1998

Editor’s note: This case concerned the applicability ofcommercial confidentiality rules under the EnvironmentalInformation Regulations of 1992. The question concerneda concession agreement for construction of a toll-financedroad scheme that contained commercially confidentialinformation. The court held that the agreement was “infor-mation relating to the environment” and that the fact thata document might contain genuine commercially confi-dential information could not be used to prevent disclo-sure of the main body of the agreement. Moreover, thecourt also determined that the applicant’s purpose in seek-ing the information was irrelevant.

United Kingdom: R v. British Coal Corporation exparte Ibstock Building Products Ltd.Queen’s Bench Division, October 21, 1994, 1995 Env. LR p 277

Editor’s note: Gathering information during planningprocedures can sometimes involve controversy. This caseinvolved the identity of an informant who claimed thatnaval ordnance may have been disposed of in a mineshaft. The permit applicant contended that the identity ofthe informant was necessary in order to assess the credi-bility of the information. Initially, British Coal refused toidentify the informant but did so after the permit applicantinitiated a court action. The applicant then sought itscosts, claiming that it was legally entitled to the informa-tion. The court held that the identity of the informant wasnot “personal information” held by the respondent andthat it was important to assess the credibility of the infor-mation and its weight.

United Kingdom: The Salisbury bypass caseSource: Peter Roderick, Friends of the Earth

In 1996, the UK government was planning to build acontroversial bypass around the historic city of Salisbury.Long after the public inquiry had finished, the Departmentof Transport carried out an “induced traffic assessmentreport” for the bypass. This report predicted how muchextra traffic would be generated by building the new road.

Friends of the Earth asked the department for a copy ofthe report. The department refused, arguing that, amongothers, the report was not “environmental information”within the meaning of Directive 90/313/EEC and the UK’sdomestic transposing legislation.

Friends of the Earth therefore brought a judicial reviewagainst the department. In its sworn written evidence filedbefore the hearing, the official admitted that “after furtherlegal advice … I am advised that the induced traffic assess-ment is capable of falling within the scope of” environ-mental information. However, the department continuedto refuse to provide a copy, arguing that the informationrelated to a matter that had been the subject of a publicinquiry (and so the sub judice exemption applied) and toconfidential deliberations of the department.

Two weeks before the court hearing was due, theDepartment of Transport provided Friends of the Earthwith a copy of the report, and the hearing did not proceed.

This case illustrates that public bodies can use severalarguments to prevent the public from gaining access toinformation. In such cases, when faced by a court hearing,they often change their minds. It also shows that publicbodies do not like the possibility of court judgments goingagainst them and will, if pushed, disclose the informationin advance to avoid a case being made in court.

United Kingdom: The pesticides and GM crops caseSource: Peter Roderick, Friends of the Earth

In 2000, Friends of the Earth asked the UK govern-ment’s Ministry of Agriculture, Fisheries and Food for cer-tain information regarding consents for the spraying of glu-fosinate ammonium on crops genetically modified to beresistant to it. Some information was made available, butthe ministry refused to specify what tests had been con-ducted or were relied upon in the consent applications “toestablish the harmlessness of the herbicide to humans, ani-mals, plants and the environment,” and refused to disclosethe full results of those tests. Article 14 of Directive91/414/EEC concerning the placing of plant protectionproducts on the market provides “without prejudice tocouncil Directive 90/313/EEC” that “confidentiality shallnot apply to … a summary of the results of the tests toestablish the substance’s or product’s efficacy and harm-lessness to humans, animals, plants and the environment.”

The ministry argued that the information was commer-cially confidential and that it had been voluntarily supplied.

Friends of the Earth wrote a letter before action to theministry saying that it was entitled to the information underdirectives 90/313/EEC and 91/414/EEC. It pointed out that itwas difficult to envisage the circumstances in which environ-mental information of the nature sought could be commer-cially confidential. It maintained that, as the company could



not have been given consent to spray the pesticide if it didnot provide the information in question, it cannot properlybe said that that information was supplied voluntarily.

The ministry responded that it no longer wished to arguethat the information was voluntarily supplied, and that it wasgoing to write to the company to ask why the informationmight meet the “strict test” of commercial confidentiality. Atthe time of writing, this was where the case lay.

The case illustrates that public bodies can use severalarguments to prevent the disclosure of information, and

that in such cases the prospect of a court case is needed forthem to change their minds, albeit currently only in part. Itis also important to note that this was an extremely com-plex case because of the nature of pesticide legislation andthe number of requests. It was only because Friends of theEarth is a large enough organisation to be able to affordlegal advice that it was able to take the case so far. A small-er community group or individual would not have faredwell. This underlines the need for a non-court appealmechanism against refusals.





Ministries of Justice in UNECE CountriesALBANIA

Ministry of JusticeBlvd. Deshmoret e KombitTiranaTel: +355-423-2704Fax: +355-422-8359

ANDORRA

Ministry of Justice and Internal AffairsEdifici Serveis de l’ObacCarretera de l’Obac, Escaldes-engordanyTel: +376-875-700, 872-080Fax: +376-822-882, 869-250

ARMENIA

Ministry of JusticeKhorhurdaranain Street 8375010 Yerevan Tel: +374-1-582-157Fax: +374-1 582-442

AUSTRIA

Federal Ministry of JusticePalais Trautson Museumstrasse 71070 WienTel: +43-1-521-522-176Fax: +43-1-521-522-730Website: www.bmj.gv.at

AZERBAIJAN

No Information

BELARUS

Ministry of Justice 10, Collectornaya220048 Minsk

Tel: +375-172-209-755 Fax: +375-172-209-755 Website: www.ncpi.gov.by/minjust

BELGIUM

Ministry of JusticeWaterloolan 1151000 BrusselsTel: +32-2-542-7911Fax: +32-2-538-0767Website: www.just.fgov.be/index2.htm

BOSNIA AND HERZEGOVINA

Federal Ministry of JusticeValtera Periaea 11 SarajevoTel: +387-33-213-151Fax: +387-33-213-151Website: www.pris.gov.ba (Under Construction)

BULGARIA

Ministry of JusticeSlavyanska 1 Street1040 Sofia Tel: +359-2-980-9229, 933-3229, 933-3247Fax: +359-2 987-2881 E-mail: [email protected]: www.mjeli.government.bg

CANADA

Department of Justice284 Wellington StreetOttawa, OntarioK1A 0H8 Canada Tel: +1-613-957-4222Fax: +1-613-954-0811Website: www.canada.justice.gc.ca/en/index.html

CROATIA

Ministry of Justice, Administration and Local Self-Administration

Appendix DImportant Contacts

Ulica Republike Austrije 14Tel: +385-1-3710-666, 3710-600, 3710-601, 3710-610, 3710-770Fax: +385-1-3710-602, 3710-612, 3710-772

CYPRUS

Ministry of Justice and Public Order12 HelioupoleosNicosiaTel: +357-2-303-917, 777-450Fax: +337-2-461-427

CZECH REPUBLIC

Ministry of JusticeVysehradska 16, 128 10 2 Prague Tel: +420-2-21-997-111Fax: +420-2-29-1720E-mail: [email protected]: www.justice.cz

DENMARK

Ministry of JusticeSlotsholmsgade 10 1216 Kobenhavn KTel: +45-121-923-340 Fax: +45-121-933-510E-mail: [email protected]: www.jm.dk/

ESTONIA

Ministry of JusticeTonismagi 5a 15191 TallinnTel: +372-2-620-8100 Fax: +372-2-620-8109 E-mail: [email protected]: www.just.ee

FINLAND

Ministry of JusticeEtelaesplanadi 10Postal Address: PO Box 25 FIN-00023 GovernmentTel: +358-9-16-003Fax: +358-9-1606-7730E-mail: [email protected]: www.om.fi

FRANCE

Ministry of JusticeHotel de Bourvallais 13 place Vendome75001 PARIS Cedex 01Tel: +33-1-4477-6471Fax: +33-1 4467-0956Website: www.justice.gouv.fr

GEORGIA

Ministry of Justice30 Rustaveli Avenue380064 Tbilisi Tel: +995-32-934-503 Fax: +995-32-990-225

GERMANY

Federal Ministry of JusticeMohrenstrasse 3710117 BerlinTel: +49-30-1888-5800 Tel: +49-30-202-570Fax: +49-30-188-8580-9525 Fax: +49-30-2025-9525E-mail: [email protected]: www.bmj.bund.de

GREECE

Ministry of JusticeWebsite: www.ministryofjustice.gr

HUNGARY

Ministry of JusticeKossuth ter 41055 Budapest, Postal Address: 1363 Budapest, Pf. 54Tel: +36-1-441-3003Fax: +36-1-441-3002E-mail: [email protected]: www.im.hu

IRELAND

Department of Justice, Equality and Law Reform72-76, St. Stephen’s Green, 2 Dublin Tel: +353-1-602-8202Fax: +353-1-661-5461E-mail: [email protected]: www.justice.ie

ICELAND

Ministry of Justice and Ecclesiastical AffairsArnarhvali vio Lindargotu150 ReykjavikTel: +354-560-9010 Fax: +354-552-7340 E-mail: [email protected]: <government.is/interpro/dkm/dkm.nsf/pages/english>

ISRAEL

Ministry of Justice29 Salah al-Din Street,91010 Jerusalem

A P P E N D I X D : I M P O R TA N T C O N TAC T S


Fax: +972-2-628-8618Website: www.justice.gov.ilE-mail: [email protected]

ITALY

Ministry of JusticeDipartimento dell’organizzazione giudiziaria del person-ale e dei serviziVia Arenula, 7000186 Roma Tel: +39-06-199-129-128, 848-800-110Fax: +39-06-06-6885-3135 E-mail: [email protected] Website: www.giustizia.it

KAZAKHSTAN

No Information

KYRGYZSTAN

Ministry of Justice37 Orozbekov St. Bishkek Tel: +7-332-228-489, 663-044Fax: +7-332-228-489, 663-044

LATVIA

Ministry of JusticeBrivibas Bulvaris 36 1536 RigaTel: +371-34-703-6801Fax: +371-34-728-5575E-mail: [email protected]: www.tm.gov.lv

LICHTENSTEIN

No Information

LITHUANIA

Ministry of JusticeGedimino pr. 30/12600 VilniusTel: +370-2-226-625Fax: +370-2-625-940E-mail:[email protected]: www.tm.lt/min

LUXEMBOURG

Ministry of Justice16 Boulevard RoyalL-2934Tel: +35-2478-4529Fax: +35-2478-4515

MALTA

Ministry of Justice and Local Government Auberge de Castille, Valletta - CMR 02

Tel: +356-226-808Fax: +356-250-700E-mail: [email protected]: www.justice.gov.mt/default.asp

MONACO

Ministry of JusticePalais de Justice5, rue Colonel Bellando de Castro, 98000 Tel: +33-93-158-411Fax: +33-93-158-589

NETHERLANDS

Ministry of JusticeSchedeldoekshaven 100, 2511 EX, The HaguePostal Address: Postbus 20301, 2500 EH, The HagueTel: +31-70-370-7911E-mail: [email protected]: www.justitie.nl

NORWAY

Ministry of Justice and the PoliceAkersgaten 42 Postal Address: Postboks 8005 Dep 0030 Oslo Tel: +47-22-249-090, 245-100Website: odin.dep.no/jd

POLAND

Ministry of JusticeAl. Ujazdowskie 11 00950 WarsawTel: +48-22-521-2888Website: www.ms.gov.pl

PORTUGAL

Ministry of JusticePraca do Comercio1100 LisboaTel: +351-213-212-400Fax: +351-213-460-028

MOLDOVA

No Information

ROMANIA

Ministry of JusticeStr. Apolodor nr 17, Sector 5 7000 Bucharest Tel: +40-21-314-4400Website: www.just.ru (Under Construction)



RUSSIA

Ministry of JusticeVorontsovo pole, bld.4109830, GSP, Zh-28, Moscow Tel: +7-095-206-0554Fax: +7-095-916-2903Website: www.minjust.ru

SAN MARINO

No Information.

SERBIA AND MONTENEGRO

Ministry of Justice, Serbia 22-26 Nemanjina St.BelgradeTel: +381-11-361-6549 Fax: +381-11 361-6548 E-Mail: [email protected]

Ministry of Justice of MontenegroVuka Karadzica 3 81000 PodgoricaTel: +381-81-248-541Fax: +381-81-248-541Website: www.pravda.cg.yu

SLOVAKIA

Ministry of JusticeZupne namestie 13 81311 BratislavaTel: +421-7-5935-3111Fax: +421-7-5935-3600E-mail: [email protected]: www.justice.gov.sk/

SLOVENIA

Ministry of JusticeZupanciceva 31000 LjubljanaTel: +386-1-478-5211Fax.: +386-1-251-0200Website: www.sigov.si/mp

SPAIN

Ministry of JusticeOfficina Central de InformationSan Bernardo 4528015 MadridTel: +34-91-390-4500Website: www.mju.es

SWEDEN

Ministry of JusticeRosenbad 410333 Stockholm Tel: +46-8-405-10 0Fax: +46-8-20-2734E-mail: [email protected]: justitie.regeringen.se/index.htm

SWITZERLAND

Federal Department of Justice and PoliceBundeshaus West 3003 BernTel: +41-31-322-1818Fax: +41-31-322-4082E-mail: [email protected]: www.ejpd.admin.ch/d/index.htm

TAJIKISTAN

Ministry of Justice25 Rudaki Avenue734025 DushanbeTel: +992-37-214-405Fax: +992-37-218-066

FYR MACEDONIA

Ministry of JusticeDimitrie Cupovski 91000 SkopjeTel: +389-2-117-277Fax: +389-2-226-975

TURKEY

Ministry of Justice06659 Kizilay AnkaraTel: +90-312-417-7770Fax: +90-312-417-3954E-mail: [email protected]: www.adalet.gov.tr

TURKMENISTAN

No Information

UKRAINE

Ministry of Justice13 Horodetskoho vul.01001 Kyiv Tel: +380-44-228-3723E-mail: [email protected]: www.minjust.gov.ua/english/index_eng.html

UNITED KINGDOM

The Lord Chancellor’s DepartmentSelborne House54-60 Victoria Street London SW1E 6QWTel: +44-207-210-8500E-mail: [email protected]: www.lcd.gov.uk/

UNITED STATES

U.S. Department of Justice 50 Pennsylvania Avenue, NW Washington, D.C. 20530-0001 Tel: +1-202-353-1555E-mail: [email protected]: www.usdoj.gov



UZBEKISTAN

No Information. Website: see www.gov.uz

Partner organisationsConvention on Access to Information, PublicParticipation in Decision-Making and Access toJustice on Environmental MattersWebsite: www.unece.org/env/pp/

Aarhus Convention Task Force on Access to JusticeWebsite: www.unece.org/env/pp/a.to.j.htm

United Kingdom – Department for InternationalDevelopment (DFID)www.dfid.gov.uk/

United Kingdom – Department for Environment,Food and Rural AffairsWebsite: www.defra.gov.uk/

Estonia Ministry of EnvironmentWebsite: www.envir.ee/eng/

ABA CEELIWebsite: www.abanet.org/

European Eco-ForumE-mail: [email protected]: www.eco-forum.org/

ELAWE-mail: elawus@elawWebsite: www.elaw.org

GUTA AssociationWebsite: www.ecopravo.lviv.ua/guta/

Offices of the Regional Environmental Centerfor Central and Eastern EuropeHead OfficeAdy Endre ut 9-112000 SzentendreTel: +36-26-504-000Fax: +36-26-311-294E-mail: [email protected]: www.rec.org

Country OfficesALBANIA

Mailing address: P.O.Box 127.Visiting address: Rr. Durresit P. 11 Shk. 2, Ap. 12Tirana

Tel/Fax: +355-4-239-444Tel: +355-382-038-727E-mail: [email protected]@hotmail.com

BOSNIA AND HERCEGOVINA

Koste Hermana 11/271000 SarajevoTel: +387-33-221-998,Fax: +387-33-209-130E-mail: [email protected]

BANJA LUKA

Slavka Rodica 1 78000 Banja Luka, RS, Bosnia and HerzegovinaTel/Fax: +387-51-317-022E-mail: [email protected]

BULGARIA

Mailing address: PO. box 1142SofiaOffice address: 3 Pozitano str., floor 51000 Sofia Tel/Fax: +359-2-980-4933Tel: +359-2-980-3730E-mail: [email protected]

CROATIA

Djordjiceva 8a10000 ZagrebTel: +385-1-481-0774Tel/fax: +385-1-481-0844Ecolinks Tel/fax: +385-1-487-3622 E-mail: [email protected]

CZECH REPUBLIC

Senovazna 211000 PragueTel/Fax +420-2-2422-2843E-mail: [email protected]: www.reccr.cz

ESTONIA

Ravala str 8, B 41510143 TallinnTel/Fax: +372-6-461-423E-mail: [email protected]: www.recestonia.ee

HUNGARY

Ady Endre ut 9-11 2000 SzentendreTel: +36-26-300-594, 302-137Tel/Fax: +36-26-311-294E-mail: [email protected]: www.rec.hu



LATVIA

Peldu 26/28, 31050 Riga(or P.O. Box 1039)Tel./Fax: +371-7-228-055E-mail: [email protected]: www.parks.lv/home/RECLatvija

LITHUANIA

Svitrigailos g. 7/16Vilnius 2009 LithuaniaTel/fax: +370-2-335-451E-mail: [email protected]: www.rec.lt

FYR MACEDONIA

ul. Mitropolit Teodosij Gologanov 39/2/21000 SkopjeTel/fax: +389-2-131-904E-mail: [email protected]

POLAND

ul. Zurawia 32/34 lok. 1800515 WarsawTel: +48-22-629-3665, 628-7715Fax: +48-22-629-9352E-mail: [email protected]: www.rec.org.pl

ROMANIA

Bd. I.C. Bratianu 44 bis, Bl. P7, Ap. 23 2nd. Floor, Sector 3,BucharestTel: +40-21-314-0433Fax: +40-21-315-3527

E-mail: [email protected]: www.recromania.ro

SERBIA AND MONTENEGRO

Palata Beograd, Masarikova 5/XVII, Office 170311000 BelgradeTel: +381-11-306-1715, 306-1716, 306-1717Fax: +381-11-306-1726 E-mail: [email protected]: www.recyu.org

SLOVAKIA

Vysoka 1881106 BratislavaTel: +421-2-5263-2942Fax: +421-2-5296-4208E-mail: [email protected]: www.rec.sk/

SLOVENIA

Slovenska cesta 51000 LjubljanaTel/Fax: +386-1-425-7065Tel: +386-1-425-6860E-mail: [email protected]: www.rec-lj.si

KOSOVO

Kodra e Diellit Rruga 3, Lamela 26, PO Box 160Prishtine, Kosove Tel/fax: +381-38-552-123E-mail: [email protected] kos.rec.org




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Bonine, J.E. Case Study on Standing-to-Sue in PublicInterest Litigation: Changes Worldwide and Prospects forCentral Eastern Europe and the NIS. Symposium on PublicInterest Law in Eastern Europe and Russia, June 29-July 8,1997: Symposium Report. Ed. E. Rekosh. Durban, SouthAfrica: Ford Foundation/Constitutional and LegislativePolicy Institute. 1997.

Bruch, C.E. & Czebiniak, R. Globalizing EnvironmentalGovernance: Making the Leap from Regional Initiatives onTransparency, Participation, and Accountability inEnvironmental Matters. The Environmental Law Reporter.Vol. 32-10428. April 2002.

Bugge, H.C. The new article on environmental protectionin Norway’s Constitution. In Nespor, S (ed). A WorldSurvey of Environmental Law. Milan: Rapporto Mondialesul Diritto dell’Ambiente. 1996.

Buscaglia E. Judicial Corruption in Developing Countries:

Appendix EFurther Reading

Its Causes and Economic Consequences. Berkeley OlinProgram in Law & Economics, Working Paper Series.Working Paper 28, 1999. Berkeley: University of California.

Capcelea, A. Guide for Environmental NGOs: Legislationof the Republic of Moldova on Access to Information,Justice and Public Participation in Decision-making onEnvironmental Matters. Chisinau. April 1999 (Romanianand Russian).

Casey-Lefkowitz, S. Citizen Enforcement Tools for EffectiveParticipation. EPA/315/B-98/010. November 1998.Proceedings of the Fifth International Conference onEnvironmental Compliance and Enforcement. Monterey,California, USA. 1999 November 16 - 20, 1998. P. 249-264.

Darroch, F. Recent developments in UK environmentallaw. In Nespor, S (ed). A World Survey of EnvironmentalLaw. Milan: Rapporto Mondiale sul Diritto dell’Ambiente.1996.

De Castro, R.A. The Ombudsman and the Myth of JudicialIndependence. UCI Ombudsman: The Journal 1994.Asilomar, CA: California Caucus of College & UniversityOmbudsmen. 1994.

Deimann, S. & Dyssli, B. (eds). Environmental Rights: Law,Litigation and Access to Justice — Proceedings of AnnualConference of the Environmental Law NetworkInternational. London: Cameron May. 1995.

Dejeant-Pons, M. & Pallemaerts, M. Human Rights and theEnvironment. Strasbourg: Council of Europe with the col-laboration of the Ministry of Social Affairs, Public Healthand Environment of Belgium. 2002.

Donson, F. Legal intimidation. London: Free AssociationBooks. September 2000.

REC. Doors to Democracy: Current Trends in PublicParticipation in Environmental Decision-making in theNewly Independent States. Szentendre: RegionalEnvironmental Center for Central and Eastern Europe. June1998.

REC. Doors to Democracy: Current Trends in PublicParticipation in Environmental Decision-making inCentral and Eastern Europe. Szentendre: RegionalEnvironmental Center for Central and Eastern Europe.June 1998.

REC. Doors to Democracy: A Pan-European Assessment ofCurrent Trends and Practices in Public Participation inEnvironmental Matters. Szentendre: RegionalEnvironmental Center for Central and Eastern Europe.June 1998.

REC. Doors to Democracy: Current Trends in PublicParticipation in Environmental Decision-making inWestern Europe. Szentendre: Regional EnvironmentalCenter for Central and Eastern Europe. June 1998.

Ebbesson, J. Compatibility of International and NationalEnvironmental Law. London/The Hague/Boston: KluwerLaw International. 1996.

Ebbesson, J. The notion of public participation in interna-tional environmental law. Yearbook of InternationalEnvironmental Law 8. 1997.

Ebbesson, J. Access to Justice in Environmental Matters inthe EU. Kluwer: The Hague, 2002.

Ercmann, S. Enforcement of environmental law in UnitedStates and European law: Realities and expectations.Environmental Law. Vol. 26, Winter, 1996. Pp. 1213-1239

Betlem, G. Standing for ecosystems: Going Dutch.Cambridge Law Journal. Vol. 54. 1995.

Fitzmaurice, M. The contribution of environmental law tothe development of modern international law. InMakarczyk, J (ed). Theory of International Law at theThreshold of the 21st Century. The Hague: Kluwer. 1996.

Fridli, J., Toth G.A. & Ujvari V. (eds). Data protection andfreedom of information: workshop on data protection andfreedom of information; Budapest, May 22-25, 1997.Budapest: Hungarian Civil Liberties Union. 1997.

Fuhr, M., Gebers, B., Ormond T. & Roller G. Access to jus-tice: Legal standing for environmental associations in theEuropean Union. In Public Interest Perspectives inEnvironmental Law. Ed. by Robinson, D. & Dunkley, J.London: Wiley Chancery. 1995.

Fuhr, M. & Roller G. (eds). Participation and litigationrights of environmental associations in Europe: Currentlegal situation and practical experience. Frankfurt amMain: Peter Lang. 1991.

Fulop, S. Publicity of data important from environmentalviewpoints. Budapest: EMLA. 1998.

Greve, M. The non-reformation of administrative law:Standing to sue and public interest litigation in westGerman environmental law. Cornell International LawJournal. Vol. 22, No. 2, 1989.

Hallo, R.E. (ed). Access to Environmental Information inEurope: The Implementation and Implications of Directive90/313/EEC. London/The Hague/Boston: Kluwer LawInternational. 1996.

Hallo, R.E. (ed). Public Access to EnvironmentalInformation: European Environment Agency Experts’Corner Number 1997/1. Luxembourg: Office for OfficialPublications of the European Communities. 1997.

REC. WHO Regional Office for Europe. Healthy Decisions:Access to Information, Public Participation in Decision-making and Access to Justice in Environment and HealthMatters. Budapest: Regional Environmental Center forCentral and Eastern Europe. June. 1999.

A P P E N D I X E : F U R T H E R R E A D I N G


Howard, A.E.D. Symposium: Constitutional “refolution” inthe ex-communist world: The rule of law, September 26,1996. American University International Law Review, vol-ume 12, No. 1.

Boyle, A & Anderson, M. (eds). Human Rights Approachesto Environmental Protection. Oxford: Clarendon. 1996.

Janssen, J. Access to environmental information: recentdevelopments on access to environmental information;transparency in decision-making. EuropeanEnvironmental Law Review. October 1998.

Jensen, T. General report. In The Concept of Interest inAdministrative Litigation (Personal Interest, CollectiveInterest, Actio Popularis), Especially in EnvironmentalMatters. Eighth Colloquium of the Councils of State andSupreme Courts of Justice of Member States of theEuropean Community, Copenhagen. 1982.

John, E. Access to environmental information: Limitationsof the UK Radioactive Substances Registers. Journal ofEnvironmental Law 7(1). 1995.

Klik, P. Group actions in civil lawsuits: The new law in theNetherlands. European Environmental Law Review. 1995.

Koch, H. Class and public interest action in German law.Civil Justice Quarterly. 1986

Kramer, L. Casebook on EU Environmental Law.Oxford/Portland: Hart Publishing. 2002.

Kramer, L. The citizen in the environment: Access to jus-tice. Environmental Liability, vol. 8, p. 127. 2000.

Kramer, L. Right of complaint and access to information atthe Commission of the EC. In Deimann, S & Dyssli, B (eds).Environmental Rights: Law, Litigation and Access toJustice. London: Cameron May. 1995.

Lambroschini, S. Russia: Judges, Plaintiffs, DefendantsFace Arbitration Court Problems – Part 2. April 2001<www.rferl.org/nca/features/2001/04/25042001114033.asp>, Radio Free Europa.

Mahoney, K. E. & Mahoney, P. (eds). Human Rights in the21st Century. Martinus, Nijoff. 1993.

McLaughlin J. T. & Dhillon H. K. Preliminary InjunctiveRelief in the Federal Courts, Chicago: American LawInstitute/American Bar Association, Practicing LawInstitute. 1996.

Ormond, T. Access to justice for environmental NGOs inthe European Union. In Deimann, S & Dyssli, B (eds).Environmental Rights: Law, Litigation and Access toJustice. London: Cameron May. 1995.

Pring, G. & Canan, P. SLAPPs: Getting Sued for SpeakingOut. 1996. Temple University Press, Philadelphia, 1996,

Pring, G. & Canan, P. The world is getting SLAPP-happy,

National Law Journal, May 1996.

Complaint Procedures and Access to Justice for Citizensand NGOs in the Field of the Environment within theEuropean Union. Tilburg University, MinVROMNetherlands. April 2000. <europa.eu.int/comm/environ-ment/impel/access_to_justice.pdf>.

Report on Information Rights: The Door onto the OtherSide. Budapest: Office of the parliamentary commissionerfor data protection and freedom of information. 2001.

Robb, Cairo A. R. ed. International Environmental LawReports vol. 3: Human Rights and Environment CambridgeUniversity Press, 2001.

Rose-Ackerman, S. American administrative law undersiege: Is Germany a model? Harvard Law Review, volume107, p. 1279. 1994.

Sanchis Moreno, F. Good Practices in Access toEnvironmental Information. Madrid: TERRAEnvironmental Policy Centre. 1999.

Sands, P. Principles of International Environmental LawVolume 1: Frameworks, Standards and Implementation.Manchester/New York: Manchester University Press. 1995.

Shemshuchenko, Y. Human rights in the field of environ-mental protection in the draft of the new Constitution ofthe Ukraine. In Deimann, S & Dyssli, B (eds).Environmental Rights: Law, Litigation and Access toJustice. London: Cameron May. 1996.

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Stanton Kibel, P. Awkward Evolution: Citizens enforce-ment at the North American Environmental Commission.Environmental Law Report volume 32, p. 10769. 2002.

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Tessmer, D. Night flights at London Heathrow violatehuman rights. Environmental Law Network InternationalReview, vol. 1/ 2002.



Third Annual Survey on the Implementation andEnforcement of Community Environmental Law. Brussels:Commission of the European Communities. 2002.

Tollefson, C. Strategic lawsuits against public participation:Developing a Canadian response. Canadian Bar Reviewvol. 73, No 2. June 1994.

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Wells, J.A. Exporting SLAPPs: International use of the US“SLAPP” to suppress dissent and critical speech. 12.2Temple International & Comparative Law Journal, vol. 12,No 2. 1998.




Andriy Andrusevych Assistant professor in the International Law Department ofIvan Franko Lviv National University, Ukraine, and inter-national affairs officer at Ecopravo-lviv.Contact details:Email: [email protected]

Marianna Bolshakova Project manager in the Public Participation Programme atthe Regional Environmental Center for Central and EasternEurope (REC).Contact details:Ady Endre ut 9-112000 SzentendreHungaryTel: +36-26-504-000Fax: +36-26-311-294Email: [email protected]: www.rec.org

John Bonine Professor in the School of Law, University of Oregon, US,founder of the Environmental Law Alliance Worldwide(ELAW), and legal expert for the European ECO Forum.Contact details:School of Law1221 University of OregonEugene, OR 97403United States of AmericaTel: +1-541-346-3827Fax: +1-541-346-1564Email: [email protected]

Olena Dmytrenko Staff attorney in the Ukraine office of the American BarAssociation/Central European and Eurasian Law Initiative(ABA/CEELI).Contact details:E-mail: [email protected]

Jennifer Gleason A staff attorney in the US office of the Environmental LawAlliance Worldwide (ELAW).

Contact details:1877 Garden AvenueEugene, OR 97403United States of AmericaTel: +1-541-687-8454Fax: +1-541-687-0535Email: [email protected]: www.elaw.org

David Jacobstein Senior program associate at the American BarAssociation/Asia Law Initiative.

Contact details:Email: [email protected]

Svitlana KravchenkoProject manager for European ECO Forum, co-executivedirector of the Environmental Law Association of CEE/NIS(Guta Association), and professor of Law at Lviv NationalUniversity, Ukraine.

Contact details:2 Krushelnitskoi Street79000 LvivUkraineTel/fax: +380-322-97-1446Email: [email protected]: www.ecopravo.lviv.ua

Brian Rohan Associate director of the American Bar Association/AsiaLaw Initiative.

Contact details:Tel: +1-202-662-1968Email: [email protected]

About the authors

Remo Savoia A member of the European Law Academy in Budapest andcountry editor for Hungary of the European EnvironmentalLaw Review.

Contact details:Borbely ut 51132 Budapest HungaryTel: +36-1-320-5006Email: [email protected]

Lynn SferrazzaLiaison officer dealing with rule of law issues in Uzbekistanfor the American Bar Association/Central European andEurasian Law Initiative (ABA/CEELI).


Dmitry Skrylnikov Co-executive director of the Environmental LawAssociation of CEE/NIS (Guta Association) and executivedirector of Ecopravo-Lviv.

Contact details:2 Krushelnitskoi Street Lviv79000UkraineTel/fax: +380-322-97-1446Email: [email protected]: www.ecopravo.lviv.ua

Stephen Stec Head of the Environmental Law Programme and seniorlegal specialist at the Regional Environmental Center forCentral and Eastern Europe (REC) and associate scholar atthe Leiden University Institute for East European Law andRussian Studies.

Contact details:Ady Endre ut 9-112000 SzentendreHungaryTel: +36-26-504-000Fax: +36-26-311-294Email: [email protected]: www.rec.org

Ludmilla Ungureanu Staff attorney in the Moldova office of the American BarAssociation/Central European and Eurasian Law Initiative(ABA/CEELI).


A P P E N D I X F : A B O U T T H E AU T H O R S
