What indicators could measure the effectiveness of access to justice in environmental matters and monitor the progress in the implementation of SDGs? What instruments could help to remove financial barriers to access to justice? Can NGOs claim damages on behalf of the environment?
These were some of the questions discussed by the Task Force on Access to Justice led by Sweden. The meeting gathered representatives of numerous Parties, high-level judges, other members of the judiciary, NGOs, IFIs and other stakeholders from across the region.
Discussions focused on the scope of review, costs and remedies — in particular, what decisions, acts and omissions can be reviewed, to what extent substantive and procedural issues can be reviewed and whether courts could alter administrative decisions which contravene provisions of domestic law
The participants also took stock of approaches for mitigating costs and removing financial barriers to access to justice. The focus was on the application of the loser pays principle, experts’ and witness’ fees and bonds for injunctive relief. They also gained better knowledge of what kind of remedies could be claimed by NGOs in case of environmental damage.
The participants highlighted a number of challenges in access to effective remedies in environmental cases. Remedies should be available and effective not only on paper, but also remedy the conflicting situation on the ground. A serious concern was also raised that in some jurisdictions NGOs are still denied access to courts to challenge acts or omissions which contravene provisions of domestic law. These challenges may impact effective implementation of the Convention’s third pillar in the Parties concerned.
It was agreed that the collection of adequate and comparable quantitative data concerning the implementation of the access to justice pillar of the Convention could assist Parties to monitor the effectiveness of access to justice and to contribute to monitoring the relevant SDGs to be adopted in September 2015.
The pivotal role that courts play in interpreting provisions of domestic law on access to justice and the importance that such provisions be interpreted in accordance with the Aarhus Convention was stressed. In this regard, participants highlighted the importance of strengthening networking of members of the judiciary, judicial institutions and other review bodies across the pan-European region and welcomed the initiative of establishing such network under auspices of the Task Force. “The issue of networking is not only training but exchange of information on practices of law where one can find inspiring solutions for the countries” said Matanat Asgarova of the Academy of Justice of Azerbaijan.
The meeting also featured a special session for judges and judicial training institutions dedicated to the promotion of judicial networking on environmental matters across the pan-European region. Participants learned about the functioning of the EU Forum of Judges for the Environment and the Association of European Administrative Judges, and noted a growing need for greater involvement of judiciary from Eastern and South-Eastern Europe, the Caucasus and Central Asia in judicial networking on environmental matters. Marc Clement, a judge from the Administrative Court of Appeal in Lyon and a representative of the EU Forum of Judges for the Environment, stressed that “We are sharing in common the Aarhus Convention as a common good.”
The outcomes of the Task Force’s work are expected to facilitate the removal of existing barriers to access to justice in environmental matters.
Note on abbreviations: Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), sustainable development goals (SDGs), non-governmental organisations (NGOs), twenty-first session of the Conference of the Parties (COP 21) to the United Nations Framework Convention on Climate Change (UNFCCC), High-level Political Forum (HLPF), World Trade Organization (WTO), Transatlantic Trade and Investment Partnership (TTIP), United Nations Economic and Social Council (ECOSOC), United Nations Environment Programme (UNEP)