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Aarhus Convention: Access to Justice for Environmental Matters

This presentation discusses the Aarhus Convention of 1998-2012, focusing on access to justice in environmental matters. It provides an overview of the convention's key articles, including definition of environmental information, public participation, and access to review procedures. The presentation also highlights the compliance mechanism and examines different procedural systems for access to justice.

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Aarhus Convention: Access to Justice for Environmental Matters

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  1. Access to Justice in Environmental Matters- The Aarhus Convention 1998-2012 Presentation at Subregional Meeting in Almaty 2012-05-1 Professor Jan Darpö Faculty of Law/ Uppsala Universitet

  2. 1. Information Article 2.3 (definition) Environmental information; any form…state of elements of the environment…factors…state of human health Article 4 (passive) Public authorities…info available upon request from the public…without stating interest, including copies (reasonable charges)…asap (one/two months)…may be refused if…interpreted in a restrictive way…in writing Article 5 (active) Collection and dissemination…PRTRs…

  3. 2. Public Participation (PP) Article 6, Annex 1 (list, permit procedure) The public…informed early in a environmental decision-making procedure…adequate, timely and effective manner EIA procedure; Info about the activity, decisions, PA, procedure, hearing, opinions, info (EIA), permit/updating

  4. 2. Public Participation (PP) Article 7 PUBLIC PARTICIPATION CONCERNING PLANS, PROGRAMMES AND POLICIES RELATING TO THE ENVIRONMENT… Article 8 PUBLIC PARTICIPATION DURING THE PREPARATION OFEXECUTIVE REGULATIONS AND/OR GENERALLY APPLICABLE LEGALLY BINDING NORMATIVE INSTRUMENTS…

  5. 3. Access to justice (A2J) Article 9.1-9.4 Access to a review procedure before a court of law or another independent body (ECHR) …adequate and effective remedies, including injunctive relief… …and be fair, equitable, timely and not prohibitively expensive…

  6. What is to be reviewed..? • Article 9.1: Information: Article 4; “any person” • Article 9.2: Permits - article 6; listed activities, substantive and procedural legality of any decision, act, omission • Article 9.3; Administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

  7. Compliance Mechanism Article 15 and Decision I/7 (2004); Review of Compliance • Compliance Committee (CC): independent and impartial experts nominated by the Parties and the Public (NGOs) • Public trigger, open sessions/ communi-cations • Recommendations (“decisions”) • Report to MoP; advice & recommendations, ask for strategy, declaration of non-compliance, cautions, suspension…

  8. “Cases” in Compliance Committee http://www.unece.org/env/pp/pubcom.html C/2004/01; Kazakhstan C/2004/03; Ukraine – “Permits”, pipe-line decisions, governmental statements/funding, EIA procedure… C/2005/11; Belgium – A2J and planning law, NGO standing C/2006/18; Denmark – Endangered species, (HD), decisions on culling rooks, private person and prosecution C/2008/23, 27, 33; UK – costs

  9. Task Force on Access to Justice • Work shops in Kiev 2007, Tirana 2008, Kazakhstan 2012 • Studies http://www.unece.org/environmental-policy/treaties/public-participation/aarhus-convention/envpptfwg/envppatoj/analytical-studies.html • EU+: Remedies • EU+: Costs • EU+: Recommendations on costs and remedies • EECCA: Costs and remedies • Standing for individuals (2012)

  10. Different procedural system Adm court General court Adm appeal- body/tribunal Authority/ Permit body

  11. The AC does NOT demand… Actio popularis Abstract norm control Direct action in court = A2J for the PC, but neutral to the ways….

  12. Key issues: Standing Sufficient interest/ Impairment of a right • Individuals • NGOs ******* Should trees have standing? (Chris Stone, 1972)

  13. Remedies Article 9.4; adequate and effective remedies, including injunctive relief as appropriate… • Procedural • Damages only for own interest or on behalf of the environment? • Public or private prosecution?

  14. Remedies • Suspensive effect • Germany, Netherlands (injunction) • Injunction on reasoned request or when public interests are at stake • Estonia, Sweden • Administrative appeals made to independent appeal bodies (with technicians) • Austria, Denmark, Finland

  15. “…not prohibitively expensive”

  16. Costs… • One way cost shifting • Slovakia, Estonia • Protective cost orders • UK (England & Wales) • Loser Pays Principle does not apply or apply only in vexatious lawsuits • Austria, Netherlands

  17. Legal aid schemes • Government funding of legal aid organizations and/or NGOs • Austria, Sweden • Fee Waivers • Hungary • Law clinics • Latvia, Czech Republic, Spain

  18. ….and finally… THANK YOU FOR LISTENING..!    jan.darpo@jur.uu.se www.jandarpo.se/ In English

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