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problems and questions of public interest litigation in hungary and THE cee REGION

problems and questions of public interest litigation in hungary and THE cee REGION. Csaba Kiss EMLA, Justice & Environment 19 October 2012, Budapest, Hungary. W hat is the essence of public interest litigation in environmental matters?

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problems and questions of public interest litigation in hungary and THE cee REGION

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  1. problems and questions ofpublic interest litigation in hungary and THE cee REGION Csaba Kiss EMLA, Justice & Environment 19 October2012, Budapest, Hungary

  2. What is the essence of public interest litigation in environmental matters? Cases against planned use of natural resources or potential damage to the environment Cases for implementing environmental liability SLAPP cases

  3. Why is it important?EC in the reasoning to the Access to Justice Directive Draft 2003 COM(2003) 624 final:„A way of improvingenforcement is hence to ensure that representative associations seeking to protect theenvironment have access to administrative or judicial procedures in environmental matters.Practical experience gained from granting legal standing to environmental non-governmentalorganisations indicates that this can enhance the implementation of environmental law.Better access to justice in environmental matters for representativegroups advocating environmental protection will have numerous positive effects, the mostsignificant being a general improvement of the practical application of environmental law.”

  4. Why is it important?Lord Justice Robert Carnwath2008 „[…] if the legislative and administrative instruments of protection of the environment are not developed sufficiently or do not work properly, the courts and judges shall “fill the gaps”, namely by “creative interpretation of the constitutional laws”. […] To perform this role successfully, the courts need that there is enough active individuals and groups, willing to “carry on the risks” ofparticipation in the legal processes. Aarhus Convention, if interpreted and used properly, can be seen as a tool for limiting these risks and enhancing the position of the members of the public actively involved in the environmental protection.”

  5. Barriersof access to justice Legal barriers Lack of forum Restrictivelegal standing criteria Difficultorinefficientinjunctive relief Practical barriers Timeliness Costs Lack of free legal aid

  6. Lack of forum No specializedenvironmentalcourtsin Hungary GreeningJustice 2009: environmental ombudsman qualifiesas a specializedlegalremedyinenvironmentalmatters No specializedenvironmentalcourtsinthe CEE region Exception is Austria: Umweltsenat 1994

  7. Restrictivelegal standing criteria In Hungary, legal standing of environmentalNGOs is relativelyliberal and broad Registeredassociationwith an environmentalobjectiveworkingintheimpactarea of an environmentaladministrativecase CEE region: multiplesolutions: • Slovakia: drawbackin 2007 and returnin 2010 • CzechRepublic: standing forimpairment of rights – onlyproceduralforNGOs • Austria: public interest, notatAdministrativeorConsitutionalCourt (ACCC/C/2010/48) • Slovenia: registrationby MOE inenvironmentalcases (vsnaturecases) • Poland: authoritydecisiononusefulness of NGO participation, public interest Djurgardencase, LesoochranarskeZoskupeniecase, Trianelcase, A2J Directivedraft 2003

  8. Difficultorinefficientinjunctive relief Conditions: • Periculuminmora • Fumus boni iuris • Primafaciecase Cross-undertakingindamages Hungary, CEE region: hardlyusedinenvironmentalcasesorwithprohibitiveconditions Slovakia: no needtodecide, noneedtoreason CzechRepublic: impairment of substantiverightsforNGOsirrealistic, preclusioninspecialprocess Connectstoissue of costs (seelater)

  9. Timeliness No exactdefinition of timely Hungary: averageenvironmentaladministrativecourtcaselastsuntil 2-3 years Negativeexamples: Holcim cement factory (4 yearswithoutjudgment), Szengtállandfill (6 yearsuntiljudgment) No datafrom CEE region – maybe a subject of futureresearch? ECHR (Art. 6 fair trial), ACCC (Kazakhstan)

  10. Costs Surveyonthe Price of Justice Justice & Environment 2009 and 2011 Administrativecasesarenotprohibitivelyexpensive – sometimesevencheap! Administrativecourtcasesalike Highestcostcategories: expertfees! Hungary: LMCS (Metro 4), LMCS (Auchan Budaörs), Nimfea (wildboar farm) Innovativesolutions: Slovakia – onewaycost shifting, Hungary – no courttaxforNGOs (meeting criteria) Roomforimprovement: shift of burdenofproof, public interest litigationfund, etc.

  11. Lackof free legal aid Legalaidinallcountries of theregion But: • Notspecializedtoenvironment • Limited capacities (time) • Notthe top attorneys Instead: • PIELs (EPS, VI, EMLA, Ökobüro, ELC, etc.) inJustice & Environment • CzechRepublic: statelegalaid and Bar Associationlegalaid • Legalclinics (e.g. OSI) • Pro bonolawyers (PILI)

  12. Conclusion No specializedenvironmentalcourts Relatively OK legal standing criteriain most of thecountries Ineffective and expensiveinjunctive relief Long lastingcourtproceedings Relativelylowcourtfeesexceptexpertfees Weaklegalaid The regionwelcomesthe A2J Directive!

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