Key challenges in implementing access to justice

1
Key challenges in implementing access to justice

• Prof.Dr.Ludwig Krämer
• 1969-2004 Judge, Landgericht Kiel
• Derecho y Medio Ambiente, Madrid
• Kramer.ludwig_at_skynet.be

2
Cases

• 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?
• 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.
• A company discharges waste water into a river,
  exceeding the limits that were fixed in its
  permit. What can the citizens do about that?

3
Judicial or administrative control?

• See Article 9(1), 9(2) and
  in particular 9(3) of the Aarhus Convention
• 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)

4
Why control the administration?

• In all industrialised societies, the task to
  protect the environment has been given to the
  administration (permits, infrastructure projects,
  financial support, monitoring nature)
• The administration is not the owner of the
  environment. The environment is everyones.
• The environment cannot go to court. It has no
  voice and it has no standing.
• Who then protects the environment against
  administrative failure, omissions to act,
  corruption, inertia?

5
Legal standing

• 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).
• 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.

6
Injunctive relief

• 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?
• 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.

7
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.

8
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.)

9
What can courts do?

• 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)

10
Key challenges

• No miracle solution to improve access to justice,
  but many small steps
• 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.