Handbook on Access to Justice under the Aarhus Convention

1,09

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255

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Regional Environmental Center for Central and Eastern Europe

2003

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Keyword index of cases 7

Explanatory note 11

Preface — Rita Annus, Chairperson of the Task Force on Access to Justice 13

Acknowledgements 15

Introduction — Stephen Stec 17

Part I: Specific Access to Justice Issues Under the Aarhus Convention 21

Chapter 1: Access to justice in cases involving access to environmental information — Remo

Savoia and Dmitry Skrylnikov 23

Failure to respond to an information request 23

Incomplete response 24

Challenges to claims of exemption 24

Chapter 2: Access to justice in cases involving public participation in decision-making — Svitlana

Kravchenko, Dmitry Skrylnikov and John E. Bonine 27

Judicial challenges to procedural illegality 27

Judicial challenges to substantive illegality 30

Chapter 3: The public’s right to enforce environmental law — John E. Bonine 31

What can be reviewed? Contraventions of national law relating to the environment 31

What can trigger the review procedure? Acts and omissions, private and public 31

Who can ask for the review? Standing 31

Chapter 4: Administrative, judicial and other means for access to justice — Remo Savoia 39

Administrative versus judicial appeal 39

Chapter 5: Administration of justice and due process — Marianna Bolshakova 43

Judicial independence 43

Corruption 43

Knowledge and capacity 44

Public support 44

Legal certainty 45

Right to counsel and presumption of innocence 45

Judicial consistency and use of precedent 45

Advisory opinions 45

Timeliness of procedures 46

Protection of persons exercising their rights 47

Further obstacles 47

Chapter 6: Remedies — Brian Rohan and David Jacobstein 49

Powers of judges and administrators 49

Enforcement of judgements 50

Injunctions as a remedy under the Aarhus Convention 50

Damages 54

Chapter 7: Financial and other barriers — Lynn Sferrazza 55

Court fees 55

Costs of experts 55

Legal aid 56

Fee shifting 56

Aggregating small claims 58

Restrictions on NGOs 58

Taxation 58

Chapter 8: Strategic lawsuits against public participation — Jennifer Gleason 59

What are SLAPPs? 59

SLAPPs identified in case studies 59

Responding to SLAPPs – SLAPPbacks 59

Legislative responses to SLAPPs 60

Protecting public participation 60

Chapter 9: Conclusions and recommendations — Stephen Stec 61

Legal/administrative issues 61

Standing issues 62

Adequacy of remedies 62

Financial issues 62

Systemic and capacity issues 63

Preface, Explanatory note, Introduction and Part I: Endnotes 65

Part II: Related Access to Justice Issues 71

Chapter 1: Rights and duties towards a healthy environment— Stephen Stec 73

The right to a healthy environment in Europe 73

Aarhus rights and procedures contributing to the right to a healthy environment 75

Chapter 2: Environmental human rights protection in the European Court

of Human Rights — Andriy Andrusevych 77

Chapter 3: Access to justice on the international level: Citizen enforcement under the North

American Agreement on Environmental Cooperation — Andriy Andrusevych 79

Part II Endnotes 81

Part III: Case Studies 83

Case study methodology 85

Table of cases 87

Cases 91

Part III: Endnotes 215

Appendices 219

Appendix A: Report of Tallinn Workshop on Access to Justice in Environmental Matters under the

Aarhus Convention 221

Appendix B: Other Cases and Background Materials 229

Appendix C: Citizen Guides Related to Access to Justice 243

Appendix D: Important Contacts 245

Appendix E: Further Reading 251

About the Authors 255