Report of the Task Force on Access to Justice on its second meeting in Geneva from 10 to 12 September 2007

The meeting brought together experts from designated governments, as well as judges and academics from the region, representatives of the European Commission (EC), representatives of the United Nations Institute for Training and Research and representatives of the national non-governmental organisations (NGOs). I – as a member of our crew – had an observer status.

The first day of the meeting took the form of a “Mini-Conference” on the theme of “Opening the Doors to Justice: The challenge of strengthening public access.”

Therefore one has to know the text of article 9 in the full text of the convention. It says:

Article 9

ACCESS TO JUSTICE

Each party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

Article 9 paragraph 3 says: In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions on its national law relating to the environment.
Article 9, paragraph 4 rules that the procedures have to be settled in appropriate time, with effective remedies, including injunctive relief as appropriate and be fair, equitable, timely and not prohibitively expensive.

In the Mini-Conference the participants talked about the topic of opening the doors to justice as a challenge of strengthening public access.

Experts from universities of Bremen and Copenhagen, Upsala (Sweden), professors of the University of Oregon, USA, and representatives of the NGOs talked about various aspects of the implementation of the access to justice. Those are:

“Key-challenges”:

(1) Strong need to have a check on the acts and omissions of the administrative authorities to balance their power to protect and preserve the environment against the interests of the “voiceless environment”.

(2) Length of procedures and determination of costs, in particular, presenting obstacles to effective environmental protection (the courts could play an important role in interpreting relevant legal rules in line with the objectives of the Convention and thus objectively balance the interests of applicants acting altruistically to protect the general interest “environment” against the interest of operators, polluters or administrations.)

(3) Questions:

(a) Who shall protect the environment, the administration or “also” the civil society?
(b) How can the environment be protected against administrative acts or omissions, inertia or negligence?

Access for whom

Under article 9, paragraph 4, the issues included are such as “actio popularis”, for recognized NGOs, sufficient interest standing, and restrictive subjective requirements for standing.

Effective remedies – Do they exist?

There is no universal understanding amongst different legal systems in relation to the notion of the “environmental procedure”. There were substantive differences in terms of procedural obstacles to access to justice between appeal systems in which courts acted in the ordinary course of appeal and had the authority to review the decision in its entirety and systems in which courts could only scrutinize a particular case on issues of legality. According to case examples one expert stressed that the need for effective remedies could differ from one system to another, depending upon some key issues such as the time of action.

Idea of courts as arbiters

Questions were raised as to who protected the general interest and how to ensure the independence and discretion of the judiciary. The importance of immediate publication of relevant studies, as well as of open and transparent procedures and judgements given in writing, was particularly stressed. It was agreed that the experiences of and with courts varied in different countries and that examples of best practice could be useful. The participants in particular discussed the issue of costs and the insecurity related to them which remained a major obstacle to effective access of justice. Some participants also pointed out that fears that opening the doors to justice would result in a flood of cases had proven to be groundless.

“Public interest advocacy”

From the International Foundation Environment/ Ukraine was pointed out that several factors preventing individuals and NGOs from filing court cases had to be considered, such as: personal threats, the risk of strategic lawsuits against public participation (SLAPPs), psychological barriers, fear of the courts, financial implications, lack of professional experience and knowledge, low environmental awareness, conflicts between economic, social and environmental interest for individuals and the lack of financial support, the availability of lawyers and support from the local population for NGOs. At present nearly 90 percent of all court suits were initiated by NGOs. Furthermore, strategic lawsuits tended to be initiated by NGOs rather than individuals, underlining the key role of public interest advocates in the implementation of article 9 of the Convention.

“Protective costs orders”

In 2005 the Court of Appeal in the United Kingdom set the parameters for appropriate issuance of “protective costs orders” that ensured that, if the NGO lost, it would not have to pay the lawyers’ costs of the other side: “The overriding purpose ….is to enable the applicant to present its case to the courts with a reasonably competent advocate without being exposed to such serious financial risks that would deter them from advancing the case of general public importance….”

Access to justice in transboundary cases

Another aspect was discussed according to the non-discrimination principle embedded in article 3, paragraph 9, of the Convention, that demonstrated how this principle had developed in international environmental law and how it had been applied in practice. While the Convention required a clear and transparent legal framework also for transboundary cases, even in the absence of such legislation the courts had an important role in ensuring due application in transboundary disputes. It was important to realize the broader scope of concerns for courts in a global society, not least with respect to environmental matters.

Litigation

While NGOs often lacked the funds to file a claim, usually business corporations could easily afford litigation. This inequality, whereby access to justice remained often a question of financial ability to sue, had to be addressed to ensure fair and equal proceedings.

Resume

The plenary emphasized that the numerous obstacles identified could not be eliminated by just one group of stakeholders but required the combined efforts of the judiciary and other legal professions as well as the relevant ministries and the parliament.

According to the Eastern states where 90 percent of the high court judges came from, a representative judge from the Constitutional Court of Belgium emphasized that the dissemination of adequate information to all relevant legal stakeholders should be a top priority. This could be done through national environmental handbooks or journals that form the basic reference material for most of the legal profession. Secondly, the Convention should be an important item in training activities for judges and other judicial officers. Constitutional courts in particular could play an important role in the enforcement of the Convention. He also underlined that administrative courts could easily reinterpret the existing national provisions on standing in conformity with article 9, paragraphs 2, 3 and 4, of the Convention.

A Resident Judge at the Mayor’s and City of London Court pointed out that there was some work done from the European Union Forum of Judges for the Environment (EUFJE) whose purposes are to: (a) share experiences of judicial training in environmental law, (b) foster knowledge of environmental law among judges, (c) share experiences of environmental law, and (d) contribute to a better implementation and enforcement of international, European and national environmental law.

In the ensuing plenary discussion it was noted that the establishment of judicial networks and associations in other (Eastern) regions would require funding which might need to come from outside sources, at least initially. In this regard, governmental sources, EU funding und funding from private foundations could be explored.

Conclusions and recommendations

Based on discussions in the mini-conference, its Chairmen presented some general conclusions and recommendations. Noting the overall importance of the Convention in the development of both national and international environmental law, they emphasized the immediate importance of the tasks undertaken by the Task Force on Access to Justice. In this regard, they noted that involvement of high-level judges in the work of the Task Force, including through capacity-building activities, had proven particularly useful. They also suggested that involvement of professional associations of judges, attorneys and other legal professionals be considered for future activities.