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Protecting Power & Privilege

Explore the barriers and methods used to undermine access to justice and democracy, including legal and financial obstacles that hinder transparency and participation. Learn about solutions adopted in different countries to protect power and privilege.

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Protecting Power & Privilege

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  1. Protecting Power & Privilege Opening the Doors Against Justice & Democracy To Justice & Democracy Access to Justice Mini-Conference Geneva Sept. 2007

  2. Imagine a Continent • Where Governments wanted to rule fairly • Including the Ministers of Justice and Ministers of Environment Access to Justice Mini-Conference Geneva Sept. 2007

  3. Imagine In other words, imagine accountability and democracy • That Governments agreed in a Convention that they would act in a transparent manner • That the views of the Public would color all their decisions Access to Justice Mini-Conference Geneva Sept. 2007

  4. But what if a few civil servants disliked transparency and participation? because it takes up their time because it affects their decisions because it erodes their power & privilege Access to Justice Mini-Conference Geneva Sept. 2007

  5. What methods could they use to undermine the Convention? • Remember: the Parties have clearly agreed that government be transparent and participatory • How could those agreements be undermined without telling the Public? • What about erecting (or just leaving in place) barriers that make enforcement of the Convention difficult or impossible? Access to Justice Mini-Conference Geneva Sept. 2007

  6. Should the barriers be hardor soft ? • Hard barriers: • Impose legal conditions on who can seek relief and remedy (restrictions on standing) • Impose high prices on access to the courts • Filing fees, bonds for injunctions • Require public complainers to pay salaries of civil servants and business lawyers if they lose (“loser pays”) • Allow businesses to SLAPP down the public • Soft barriers: • Leave NGOs and members of the public begging for legal representation Access to Justice Mini-Conference Geneva Sept. 2007

  7. Hard and soft barriers • Filing fees • Bonds for injunctions • SLAPP suits • Loser-pays rule • Lack of funding for lawyers for the public Access to Justice Mini-Conference Geneva Sept. 2007

  8. Have studies been made on financial barriers? Not a single study has said things are fine. Instead . . . Recent UK studies: • ELF Report (2003) • Capacity Global Report (2003) • Environmental Justice Report (2004) • CAJE Briefing (2004) • Lord Justice Maurice Kaye Report (2006) • Some other European studies: • Access to Justice Task Force Report (2001) • de Sadeleer EC Report (2002) • Ebbesson EU study (2002, Kluwer) (500 pages) • Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal (2005) (200 pages) • Sanchis-Moreno report (Spain, 2007) Access to Justice Mini-Conference Geneva Sept. 2007

  9. SLAPP suits • Strategic Lawsuits Against Public Participation (SLAPP) • SLAPP-back solution • Anti-SLAPP legislation Access to Justice Mini-Conference Geneva Sept. 2007

  10. The Gunns Case “10. The Wilderness Society has since 1999 conducted a campaign of interference and disruption against [Gunns] aimed to injure its trade and business . . . . “Publicizing grievances about the environment and the operations and activities of [Gunns] “Publicly denigrating, vilifying and criticisizing [Gunns]. “Corporate campaigns targeting shareholders, investors, and Banks.” Access to Justice Mini-Conference Geneva Sept. 2007

  11. SLAPP suits • SLAPP-back solution • Anti-SLAPP legislation Access to Justice Mini-Conference Geneva Sept. 2007

  12. Loser-pays Rule • Traditional rule (U.K., Australia) • Self-responsibility rule (U.S.A., Spain) • New adoptions of the old U.K. rule • Belgium trends in civil cases • Judicial modification of the U.K. rule • Protective cost orders (P.C.O.s) • Justice Lord Maurice Kay report: Litigating the Public Interest (July 2006) Access to Justice Mini-Conference Geneva Sept. 2007

  13. Lack of funding for lawyers • Low number of public interest lawyers • Disappearance of ABA-CEELI in the East • Rare support from foundations • Unfairness & unlikelihood of requiring only pro bono representation for NGOs and individuals Access to Justice Mini-Conference Geneva Sept. 2007

  14. The U.S.A. Solution • Nonprofit foundation support • Freedom of Information Act attorney fee awards • Citizen suit attorney fee awards • Equal Access to Justice Act • Private public interest bar (not just ordinary pro bono) Access to Justice Mini-Conference Geneva Sept. 2007

  15. The Australian Solution • Environmental Defenders Offices throughout Australia • Modification of loser-pays Access to Justice Mini-Conference Geneva Sept. 2007

  16. Is there a European Solution? • Legal Aid for NGO lawsuits? • One-way attorney fee awards? • Donor country funds for NGO lawsuits, training, or studies? • Multinational funds to support access to justice activities by NGOs? Access to Justice Mini-Conference Geneva Sept. 2007

  17. Protecting PowerAgainst Justice & Democracy • Keep multiple barriers to justice • Hard and soft barriers • Legal and financial barriers • Undermining the Governments • Undermining the Aarhus Convention • Undermining the People Access to Justice Mini-Conference Geneva Sept. 2007

  18. Opening the Doors • Reduce multiple barriers to justice • Eliminate hard legal and soft financial barriers • Strengthening the Policy of Governments • Building the Aarhus Convention • Supporting participatory democracy and rule of law Access to Justice Mini-Conference Geneva Sept. 2007

  19. However, the Almaty NGO Appeal for Justice said: “Individuals and NGOs are often effectively barred from seeking justice . . . “In such situations, the Aarhus Convention may be seen as consisting of two pillars and a broken stick.” Access to Justice Mini-Conference Geneva Sept. 2007

  20. Judges’ View EECCA Judges Lviv Statement (2003): “[The judges] identify the need for financial and other support for … lawyers to assist citizens and their organisations to apply to the courts to defend environmental rights.” Source: 15 Chief Justices and senior judges from Supreme and Constitutional Courts from 11 countries of Central/Eastern Europe, Caucasus and Central Asia (the EECCA Region) Access to Justice Mini-Conference Geneva Sept. 2007

  21. Access to Justice Mini-Conference Geneva Sept. 2007

  22. Should we keep the door closed for NGOs and citizens? Mr Justice Wilcox in in Ogle v Strickland: "The idol and whimsical plaintiff, a dilettante who litigates for a laugh – is a [ghost] which haunts the legal literature, not the court room.” Access to Justice Mini-Conference Geneva Sept. 2007

  23. Is the sun rising or setting on access to justice by citizens? Access to Justice Mini-Conference Geneva Sept. 2007

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