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Access to Justice

Access to Justice. The Hungarian story. 1. Starting point: Article 9. 9.1 administrative, judicial review where access to information is refused 9.2 administrative, judicial review where access to decision-making is refused 9.3 general criteria on the review procedure

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Access to Justice

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  1. Access to Justice The Hungarian story

  2. 1. Starting point: Article 9 • 9.1 administrative, judicial review where access to information is refused • 9.2 administrative, judicial review where access to decision-making is refused • 9.3 general criteria on the review procedure - to provide adequate and effective remedies, - fair and equitable - timely - not prohibitively expensive

  3. 2. Historic introduction - late 1980s, early 1990s: the legal foundations of a democratic society (freedom of association, data protection/access to information) - mid 1990s: comprehensive revision of the complete body of environmental law. Preparatory group of the 1995 Environment Framework Act chaired by an NGO. Result: guarantees of environmental democracy clearly spelt out - low confidence in the public administration, high confidence in the judiciary - the focus is on strong procedural and institutional guarantees

  4. 3. Precondition: How to become an NGO? • Act II of 1989 on Associations • No obstacles, strong guarantees • Rules of establishment: • 10 natural or legal persons • Charter • Elect officials • to become an environmental NGO: reference to be made to environmental protection in the charter • Registration: • Country courts • 60 days, if no formal decision is taken: automatic

  5. 4. Access to justice with regards to environmental information • basics: 1995 Environment Act and 2005 government decree • access to justice regime: 1992 Data Protection Act (strict rules, strong guarantees) • procedure: 15 days to fulfill any request for environmental information, refusal must be made in writing in 8 days • review procedure: no administrative review > right to direct recourse to judicial review within 30 days from the receipt of refusal • county courts/a selected number of local courts • fast track deliberation in court • lawfulness of refusal to be demonstrated by the authority

  6. 5. Access to justice with regards to decision-making • the framework for decision-making concerning Annex I activities > “the environmental permitting procedure” (environmental impact assessment) • legal standing: under the 2004 Administrative Procedures Act (same as under the 1959 act) > “any person whose right or legitimate interest is affected” • environmental NGO: automatic legal standing in every stages of the procedure

  7. review procedure: • Administrative Procedures Act • Appeal against any first instance resolution on the merit of the case (two stage procedure) • Civil Court Procedures Act • Appeal against all environmental resolutions of second instance (three stage procedure) • Altogether: 5 forums! • Effect of appeal: the resolution cannot be effected until it becomes final

  8. 6. Other avenues • court practice: Supreme Court Uniformity Decision No. 1/2004 > opened the floodgate • system of coordinated permitting procedure (lead/expert authorities) • Decision No. 1/2004: wherever the environmental inspectorates are involved in a permitting procedure as expert authorities > environmental NGOs have standing • Examples: endless (construction, mining, spatial planning, etc.)

  9. 7. Costs • NGOs that do not carry out any business activity giving rise to the payment of corporate tax • Exempt from any administrative and court fees in a personal capacity • Other legal costs: if not successful at the trial > certain legal costs to be borne by the losing party (official formula + judicial appreciation)

  10. 8. Repercussions Legal situation • easy to become an NGO • unlimited legal standing • broad range of permitting procedures open for participation • cost-free legal challenge • several forums and procedures (recent study identified 8 different forums in the permitting of one major infrastructure project)

  11. Sociological factors • high NGO activity at national level (any major project appealed) and international level (Aarhus Compliance Committee, European Commission) • slow authorities • even slower courts Results • deadlock (until all appeals are over > standstill) • effective blocking of permitting procedures for years • misuse of the right to review

  12. 9. Responses Developers’ view - their rights to fair, equitable and timely procedure is not ensured Legislative responses • 2003 Motorway Act • First instance decision delegated to the national (rather than regional) authority > one less appeal • First instance resolution can be executed irrespective of appeal (injunction is possible) > no dilatory effect • Environmental authority no longer “expert authority” > no multiplication of forums • Fast track deliberation in court • Compliance Committee 2004: the Motorway Act remains within the limits of the Convention but no further cut-back

  13. 2006 bill on the simplification of administrative procedures relating to projects of outstanding national interest • Approved by the government, not submitted to Parliament • Does not concern environmental permitting procedure • Pattern: • National authority at first instance • One stage judicial review • Fast track procedures

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