Key challenges in implementing
access to justice
Prof.Dr.Ludwig Krämer
1969-2004 Judge, Landgericht Kiel
Derecho y Medio Ambiente, Madrid
Kramer.ludwig@skynet.be
Cases
1.
The citizens and industrial companies of a city discharge their
waste in an old quarry which is neither licensed nor equipped for
receiving waste. The municipality, the regional administration, the
government do not act. What can the individual citizen do? What
can an environmental organisation do?
2.
The regional administration decides to build a motorway through a
protected natural habitat, without environment impact assessment
and without consulting the citizens or the municipalities concerned.
3.
A company discharges waste water into a river, exceeding the limits
that were fixed in its permit. What can the citizens do about that?
Judicial or administrative control?
See Article 9(1), 9(2) and in particular 9(3) of the Aarhus Convention
1.
For procedures under Articles 9(1) and 9(2), Denmark, Lithuania and
Poland have developed some administrative systems.
2.
Article 9(3): Contracting Parties shall set up “judicial or
administrative procedures” which must be objective (fair) ,
equitable and quick (timely).
It appears that no EC Member State has created new administrative
procedures under Article 9(3)
Why control the administration?
1.
In all industrialised societies, the task to protect the environment
has been given to the administration (permits, infrastructure
projects, financial support, monitoring nature)
2.
The administration is not the owner of the environment. The
environment is everyone’s.
3.
The environment cannot go to court. It has no voice and it has no
standing.
4.
Who then protects the environment against administrative failure,
omissions to act, corruption, inertia?
Legal standing
1.
In most legal systems, it is necessary to have an “interest” to bring
a case to the court. In some countries, more is needed (“impairment
of a right”) in other countries less (actio popularis).
2.
Does Article 9(3) of the Aarhus Convention oblige to change
the existing systems for legal standing?
- criteria of national law (Article 9(3))
- objective of the Aarhus Convention of giving wide access to justice
(Article 9(2))
- objective to have objective, equitable, quick and not too expensive
procedures which include injunctive relief (Article 9(4))
- Aarhus Compliance Committee: a system that practically restricts
access ( of NGOs) to exceptional cases, is too narrow.
Injunctive relief
1.
In the three cases above, only case (2) lends itself to injunctive
relief. In case (1), how to stop a whole city to discharge? In case (3),
how stop the company? How oblige the administration to come in?
2.
In all cases, there must be a “right” or an “interest” in substance to
have the practice stopped. This depends anew from the
interpretation which is given to these notions.
Courts are reluctant to grant injunctive relief, for fear of damages.
However, where the weighing of interests has not taken place in the
beginning, the environmental impairment was made at the risk of
the acting body.
3.
Costs
In numerous countries, individuals and NGOs report that costs of
litigation are prohibitively high. Main costs are lawyers fees and
experts costs.
Environmental litigation is typically, though not always, an altruistic
litigation. The applicant tries to protect a common interest, not to
ensure a personal advantage.
In numerous countries, courts have a considerable discretion as to the
decision on costs. The impression is that this discretion is not always
taking into consideration the altruistic nature of environmental
disputes.
Legal aid is, in a number of countries, not granted to NGOs or
associations. Where this is fixed by legislation, there might be a need
for change; where this practice is based on court decisions, the basics
should be reconsidered.
Length of procedure
1.
Close relationship between length of procedure, injunctive relief
and costs
2.
An official (judge) earns the same amount of money, whether he
works quickly or slowly
3.
Can court litigation be speeded up? Yes, but by internal measures
essentially (chamber competition; explanation of delays; delays for
lawyers etc.)
What can courts do?
1.
2.
3.
“sufficient interest” and “impairment of a right” are not defined. The
different interpretations given by national courts and by the EC
court of Justice show the amount of interpretative discretion which
courts have
Examples: - air quality objectives (EC Court of Justice)
- directly concerned (EC Court of First Instance)
- interest in the environment (Dutch courts)
Speeding up procedures
- concentration of litigation
- judicial self control
Injunction
- Via Appia syndrome
- how to quantify environmental impairment
(the economic value of a butterfly)
Key challenges
1.
No miracle solution to improve access to justice, but many small
steps
2.
The key: do we want to give to individuals and NGOs a greater
possibility to protect – with the help of the courts, the arbiter of
interests in society - the environment in those cases, where the
administration does not enforce the existing law (see the three
cases above). In other words:
Who shall protect the environment, the administration or
(also) the civil society.