Implementation Challenges of Access to Justice in Europe

1. Implementation Challenges of Access to Justice in Europe C s a b a K i s s TAI EMLA Justice and Environment

2. Multi-Country Access to Justice Implementation Surveys • The Access Initiative (TAI) • Justice and Environment(J&E) • European Environmental Bureau(EEB)

3. TAIwww.emla.hu/taieurope • The Access Initiative European Regional Report • civil society coalitions in TAI partner countries • Bulgaria, Estonia, Hungary, Ireland, Latvia, Lithuania, Poland, Portugal, Ukraine • access to justice: Estonia, Hungary, Ireland, Lithuania • 18 cases and 148 questions • between 2003 and 2006

4. TAIwww.emla.hu/taieurope • A total of 13 cases assessed and analyzed from 4 countries • 6 in Hungary, 3 in Lithuania, 2 in Estonia • 1 eachregarding water issues in Estonia and Ireland • 5 cases related to prevention ofenvironmental harm • 3 cases related to access to information and access to participation • Ver2.0 methodology, access to justice is studied under three headings by the following number of indicators: • law (13 indicators) • effort (25 indicators) • effectiveness (7 indicators)

5. TAIwww.emla.hu/taieurope Findings • Forum to hear the case – 100% • Appeal against first instance decision – 74% • Impartiality and independence – mostly there • Fairness in the case – 77,8% • Standing is an issue – 27% • Impacts of access are positive – 33,3% • Provisions for monitoring and enforcing compliance – 33,3% • Restrictions: fact finding, transparency of the process

6. TAIwww.emla.hu/taieurope Time and Money

7. TAIwww.emla.hu/taieurope Conclusions • Access to justice is gradually opening up for environmental matters • Legislation to enable access to justice is largely in place • Serious lack of legal requirements to build capacity in the relevant bodies • Small NGOs and members of the public get weaker access than larger NGOs, commercial bodies and government agencies • Enforcement is only monitored in a few cases • Law provides some of the rights of access, but does not provide the capacity to enable effective execution of those rights, nor the outcomes that provide effective relief to the plaintiffs Recommendations • Independence and special environmental knowledge of the judiciary • Specialized environmental courts should be established • State subsidies are needed that may take the form of fee waivers, reversal of burden of proof, earmarked grants for covering court fees, free legal aid, litigation risk funds, etc.

8. J&Ewww.justiceandenvironment.org • Justice and Environment Year 2006 Annual Workplan • association of European public interest environmental law organizations • Austria, Czech Republic, Estonia, Hungary, Poland, Slovakia • special attention to Art. 9.2 • „happy trinity”: transposition legal analysis, case study and position paper + 1: strategic complaint • in 2006

9. J&Ewww.justiceandenvironment.org Findings • Courtsand other authorities are reluctantto quote and refer to the Convention (AT, SK) • Legal standing is insufficient to implement the provisions and philosophy of the Convention (ALL) • Public participation and access to justice for non-NGOs is permissible only if „direct impairment of their rights” is proven (ALL) • Judicial injunctive reliefs are mostly inefficient (AT, CZ, HU, PL, SK) • No effective remedy available against a negative EIA screening decision (AT, CZ, EE, PL, SK)

10. J&Ewww.justiceandenvironment.org Conclusions • Insufficient clarity on the position of the Convention in the national legal systems, particularly asto its direct applicability and precedence over national law in practice • Legal standing both in administrative and judicial proceedings – the position oforganisations and individuals, where for the most part only the standing ofenvironmental organisations in proceedings under Article 9.2 is unproblematic • Efficiency of the review and the timeliness of proceedings are an issue, and injunctive reliefor other forms of postponing challenged decisions are scarce • Review of decisions within the EIA process is problematic, particularly screening decisions, since manyassessments end at this stage and national systems make it often impossible tochallenge these decisions

11. J&Ewww.justiceandenvironment.org Recommendations • Courts and administrative authorities should apply the AC directly in cases when the national law is conflicting • When the national law is insufficient it should be interpretedin conformity with the AC • Legal standing of the “public concerned” should be viewed and interpreted broadly • Environmental NGOs and public concerned should be unified on a basis where these canhave not only the procedural rights violated but also the substantive ones • Legal systems must contain measures to provide for sufficient efficiency, timeliness andscope of court review • Norms of civil and administrative court proceedings should setspecific timelines for review • Application of injunctive relief or other measures topostpone enforceability of challenged decisions must be realistic • Publicconcerned should have the full right to challenge the substance of screening decisions in EIA processes

12. EEBwww.eeb.org • European Environmental Bureau Quick Scan • questions in 27 MS – answers from 20 MS • Austria, Belgium, Czech Republic, Cyprus, Denmark, Estonia, France, Germany, Greece, Hungary, Ireland, Italy, Netherlands, Poland, Portugal, Romania, Slovenia, Spain, Sweden, UK • 23 questions, 11 relating to access to justice • in 2007

13. EEBwww.eeb.org Findings • MS have established mechanisms specifically to deal with FOI request refusals (EE, FR, HU, IE, PT, SI) • Good chance of succes of court cases challenging such refusals (DE, HU, ES) • Long court procedures (AT, BE, CZ, DK, ES, FR) • Limited or problematic standing (AT, CZ, DE, SI, SE) • Ineffective or impossible-to-get injunctive relief (AT, CZ, DK, FR) • High court fees, attorney fees or expert fees (FR, HU, ES, UK) • Rollback of rights by the AtoJ Directive?(YES: EE, HU, NL, PL, SE vs. NO: AT, BE, DE, IT, ES, SI)

14. EEBwww.eeb.org Conclusions • Existing barriers mean that public and NGOs are limited in their ability to have meaningful access to justice • Without the Directive on Access to Justice, the EU MS can not be considered to be in compliance with the Convention Recommendations • EU adopt proposed Directive on Access to Justice • Eliminate criteria for „qualified entities”, extend criteria of environmental proceedings to „internal review procedures” • Remove practical barriers of access to justice, e.g. reduce costs of public participation, establish science shops • Make injunctive relief easier to obtain • Commission guidance on issues that arise in several MS