A2J – Conference on access to environmental justice
On 16 and 17 April, an international conference on access to justice in environmental matters was held at the Supreme Administrative Court in Brno, Czech Republic, organised by the Ministry of Environment of the Czech Republic in the scope of the Czech EU presidency. More than 80 experts from 17 European countries, judges and assistants form higher courts, lawyers of ministries, university pedagogues, attorneys and others addressed the experience with practical application of the “Aarhus Convention” at courts in individual EU countries.
Sir Robert Carnwath, Lord Justice of Appeal from UK, Luc Lavrysen from the Belgian Constitutional Court and Jerzy Jendroska, member of the Aarhus Convention Compliance Committee presented their lectures i.a. the role of courts and judges with regard to the protection of the environment, the accessibility and efficiency of the judicial protection on that field or the application of the Aarhus Convention trough the EC law.
The lectures were concurred by working groups, in the scope of which the participants discussed about possible solutions of the model cases, which reflected typical problems related to legal protection of environment before national and EU courts. The cases of the Compliance Committee, which addressed failures of some parties to the Convention concerning access to justice, were also subject to the working groups’ discussions.
Thanks to support by International Visegrad Fund and Ministry for Housing, Spatial Planning and Environment of the Netherlands, a number of environmental law NGOs – Environmental Law Service (Czech Republic), VIA IURIS (Slovakia), Environmental Management and Law Association (Hungary), ÖKOBÜRO (Austria) and Estonian Environmental Law Center (Estonia) and Environmental Law Center (Poland) actively participated on the conference. All of these organisations except Environmental Law Center (Poland) are members of the Justice & Environment (J&E) network The NGOs lawyers prepared background material for the conference 5) and participated actively at the plenary discussions as well as working groups.
The conference discussions have shown that similar problems concerning access to environmental justice occur in most of the parties to the Convention. On the other side, there are also considerable differences among the individual countries with regard to fulfillment of the Convention’s requirements. This disunity clearly does not correspond to the declared goals of the Convention. It is also not desirable from the aspect of the Convention’s position as part of EC law, which should also indicate the requirement for a basic common standard of its application in all EU member states.
The differences appear for example in the scope of acts subject to judicial review. It is obviously not in accordance with the Convention, that some countries apply so strict criteria in cases concerning e.g. industrial accidents, operation of unauthorised waste dumps or exceeding emission of harmful substances or noise limits, that they actually prevent access to courts to all or nearly all affected subjects (including non-government organisations). Accordingly, the fact that the courts only deal with the procedural mistakes of the authorities and refuse to review also the substantive arguments is not in compliance with the requirements of the Convention. The efficiency of the judicial protection, which cannot be reached without availability of preliminary measures, appears to be a key element for the practical fulfillment of the rights granted by the Convention.
In some countries the courts have acceded to direct application of the Convention, which has mostly led to an increase in standards of legal protection of environment and affected individuals. In other states the courts have refused the option of direct application. Regardless of the issue of whether the Convention is “capable of direct application” from the aspect of national laws, the courts should always interpret the relevant national provisions in accordance with the requirements of the Convention. In most cases this should be sufficient to fulfill its goals. This is also connected to the question of the scope of access to the European Court of Justice in environmental matters, with regard to the decisions and acts of the EU institutions, which has been interpreted very restrictively so far.
The Aarhus Convention is a unique international legal instrument, which combines the subject of environmental protection with human rights and simultaneously with the responsibilities of public institutions and also individuals and their associations. Thanks to its uniqueness the Convention has induced and still induces many expectations. However these expectations are frequently disappointed by the formal approach by courts and other public institutions. It would be shame if these vain expectations would lead to fall of people’s interest and willingness to become actively involved in the environmental protection.
The participation of J&E was supported by:
Ministry for Housing, Spatial Planning and Environment of the Netherland (VROM)
* Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted in Aarhus in 1998
