Pilsen Environmental Foundation
AARHUS CONVENTION:
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Pilsen Environmental Foundation Americká 29, 301 38 Plzeň Czech Republic telefon/fax: 019-7455905 e-mail: pen@iol.cz http://www.ecn.cz/pen
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| Par. 1 |
Paragraph 1 of Article 9 deals with review of the public administration’s inadequate answers or otherwise wrongful refusal of request for information. The Czech provisions enacted by law (Act 123/98 on the right of environmental information) are in due conformity with this stipulation.
The legislation of the Czech Republic does even respect the provision of the convention that stipulates a possibility to review a case when a request for information has been ignored. This provision is included in §9 subsection 3 of Act 123/1998 according to which it shall be understood that the authority has decided to wrongfully refused the request for information provided that it failed to answer the request for information within a stipulated period or to issue a decision. As constructive, if this is the case a decision does legally exist and the applicant may employ an appropriate remedial action (an appeal or an expostulation). A second-stage body should subsequently issue a resolution on remedial action. Should that be not to the applicant’s satisfaction he may bring the case before a court. Vigorous protest against such construction of law are heard from among the national administration personnel and they would insist that it is impossible to appeal against a resolution that does not effectively exist. Sometimes, it appears difficult to determine whether the requested information is an environmental one. Disputed is also a procedure taken by a liable party that provides access to information in another form than that proposed by the applicant (a copy). Many questions arise in relation to some reasons of refusal (copyright, business secret, protection of privacy and personal data).
| Par. 2 |
Paragraph 2 deals with a possibility to review procedure to challenge the substantive and procedural legality of any decision, act or omission subject to decisions on objectives listed in an annex to the Convention. However, the countries shall be obliged to provide for a review where so provided for under the national law. It shall not be deemed an open violation of the Convention if a possibility of a review procedure is determined in a very narrow scope by the national law. Although the narrow scope of a possibility of a review procedure were not be an open violation of the Convention, it could be an act contrary to the purpose and the objectives of the Convention referred to in the Preamble. Should the national law declares the public right of access to review procedures completely void, it could be deemed circumvention of an international convention and found in contrary to the Vienna Convention on contractual law of 1969. This convention determines the procedure of concluding and construction of legal liability of international treaties. A principle of fair performance under an international treaty stipulates that every treaty in force is binding upon the parties and must be performed by them in good faith (Article 26). Non- performance of provisions of an international treaty and circumvention of the principle of just performance of international treaties shall result in the international liability of the defaulting country and may become the reason of discharge of the treaty.
An independent review procedure shall always be a review before a court of law. However, a special extrajudicial body (an administrative tribunal) may also be considered the competent body. In any case, it shall be a body outside the structure of superior and inferior relationships within the public administration. Naturally, hearing regular and irregular remedies and appeals (appeal, expostulation, renewal of proceedings, review outside the proceedings of appeal). Shall not be considered an independent review. Currently, only the review procedures before courts of law have been operating in the Czech Republic to a certain degree (see further below) and apparently, this will be the main direction of the future developments. A review procedure before a court of law consists of two different procedures. First, administrative courts may review some decisions and second, a complaint may be brought under the constitutional procedure. In either of the cases, the citizen or the non-government organisation has to be represented by an attorney or a person of law education (at administrative actions taken by corporate bodies). Disregarding the reference to national law, the currently existing law in the Czech Republic contains severe deficiencies.
The law stipulates relatively short periods for filing an administrative suit and a complaint under constitutional procedure (60 days and 2 month respectively). This deficiency will then be heavily sensed as a result of lower awareness of law. Instead of filing a suit or a constitutional complaint, the citizens and the NGOs will write complaints and petitions. Before these initiations and petitions are attended, the time for a review by a court of law will invariably expire.
Administrative Justice
Administrative justice is the principal instrument of independent reviews of the public administration action. In view of the environment and the public involvement, the currently existing status of the administrative justice shows deficiencies as follows:
The court will review only the decisions awarded in result of administrative proceedings – all the procedures other than administrative proceedings (EIA, forest management plans, and area development plans) are excluded.
Common Justice
Courts of common law are competent to adjudicate on disputes between private entities, typically under the rules of Civil or Commercial Code. Most frequently, they are disputes in ownership rights, performance under a contract or damages. No review of a decision by an administrative body is involved; the administrative body will not intervene in the case at all.
In the field of environmental protection, private action may be applicable to so called neighbour’s rights (e.g. protection against undue nuisance from emissions or imissions).
In the field of consumer protection, a possibility for consumer’s association should be mentioned to bring an action against unfair competition. E.g., associations are allowed to sue firms for false advertising and to demand that the court put a stop on the advertising.
These cases are not addressed in the Aarhus Convention at a primary level. Subsection 3 of Article 9 of the Convention may be understood as referring to such cases. It may be stated in general that the Czech enactment conforms with the requirements stipulated in the Convention.
Criminal Justice
These cases are not addressed in the Aarhus Convention at a primary level. Subsection 3 of Article 9 of the Convention may be understood as referring to such cases. Proceedings at a court of law are open to the public and anybody may be physically present. However, he/she shall not hold a position of a party to the proceedings unless his/her rights have been infringed. Via a construction, it is possible to arrive at a deduction that citizen’s associations may be the injured parties in result of a crime of environmental damage provided that a part of the nature under the association’s long-term protection is damaged, that the association invested time, funds etc. in the protection (not yet verified in practice). Since the Convention does not deal with material law at all, proposals for detailed specification of facts of the cases have not been included in the analysis.
Criminal judgements are not commonly accessible (the courts are not liable entities according to the act of right of environmental information). After the act on the right of environmental information comes into effect, there may be a way towards getting criminal judgements at the prosecuting attorney’s office (not yet examined in practice).
It may be stated that the Czech law is in conformity with the Convention in general.
| Par. 3 |
The Convention in Subsection 3 of Article 9 stipulates that the government shall assure that members of the public have access to administrative and judicial procedures to challenge proceedings, acts and omissions by private persons or public authorities which contravene provision of its national law.
However, the government should assure access to administrative and judicial procedures only for the citizens meeting the criteria set by the national law. It shall not be considered an open breach of the Convention if the national law stipulates very strict criteria that make the access to procedure effectively impossible for members of the public. However, it could be viewed as circumvention of the purpose of the Convention, as acting contrary to the Convention objectives expressed in the Preamble. For comments on currently existing enactment of the judicial protection and possible remedy in this class of deficiencies, see above.
Regarding the access to judicial procedures, it may be stated: Judicial procedures in accordance with the Convention should not be narrowed down to procedures governed by the Code of Administrative Procedure. The administrative procedure in this broader meaning has got three fundamental forms in the legal order of the Czech Republic:
2. Other administrative procedures under specific enactment:
3. Specific cases of administrative procedures
Criteria of Access to judicial procedures
The most effective tool of influencing the procedures in conformity with the act on administrative procedure is an institution of parties. Being at a position of a party to the administrative procedure means having a possibility to offer evidence to an administrative body, to deliver statements on any procedural documents and to seek review of an administrative body’s decision before a superior authority or an independent authority – a court.
General criteria for becoming a party are contained in the Act on Administrative Procedure. The party to a proceedings may be a person on whom the proceedings taken or a person whose rights may be affected by the proceedings (primarily material rights protected by one of commonly binding legal regulations – typically the right of ownership. The definition is not conceived broadly enough and itself will not assure participation in the proceedings for the citizens and organisations whose rights are not directly affected in the proceedings but whose activities give grounds for their being concerned about the issues at hearing (so called concerned party – e.g. an environmentalist’s organisation with reference to its activities).
In the area of decision making on matters of nature and landscape protection, the criteria of being a party are enacted differently. A citizen’s association, the primary aim of which is the nature and landscape protection, having filed a request for information on any instituted administrative procedures with an administrative authority may participate in the proceedings. Having received an information on an instituted administrative procedure, the association may sign on the proceedings. If that is the case, it will enjoy all the rights of a party to the proceedings. However, their capacity to initiate a judicial review of the administrative decision is limited. According to the currently existing judicial practices, the association may effectively seek remedial action at the court only when their procedural rights were infringed.
The citizen’s associations cannot become a party to the proceedings unless the proceedings may affect the interest of nature and landscape protection (particularly in the built-up areas of cities). Also, associations active in the consumer’s protection or the national heritage protection, cannot be a party to the proceedings of these matters.
A party to the proceedings may raise objections during the proceedings, propose that evidence be taken, witnesses are heard, propose review or suspension of the proceedings. Should it be discontented with the quality of accommodation of their requirements, it may initiate a review of the decision referring it to a superior authority or a court of administration.
Position of a party to the proceedings becomes distinctly poorer when the party is held up to wrongful inactivity of an administrative authority. There is no possibility to defend this inactivity except for motion to employ an action against inactivity, which is completely up to the superior authority’s will.
Criteria of Access to judicial procedures
Deficiencies occurring in access of the members of public in the stated cases of procedures under specific enactment may be generalised as follows:
Criteria of Access to the right to make complaints and the petition right
Any citizen may file a complaint. The administrative authority, provided that it is an authority competent to discharge complaints, is obliged to reply within a given period. If the authority is not competent, it is obliged to refer it to a competent one. If the citizen does not agree with the manner of the complaint discharge, he/she shall have the right to file a complaint against the discharge. The fundamental discrepancy of this enactment consists in non-enforceability of a reply by the administrative authority. All the procedure of attending to complaints is defined by a legal regulation that is desperately obsolete both in the aspect of contents (issued in 1958, it features the ballast of ideology of the time) and in the aspect of formal law (there is serious doubt whether this form may be taken a valid legal regulation). The right to petition is set in the Bill of Rights and Liberties. Any citizen or a group of citizens may file a petition. The body receiving the petition is obliged to attend to it within due time.
| Par 4, 5 |
Another provision not referring to a national law and clearly obliging the government is the first part of Subsection 5 of Article 9. It deals with encouraging the public in their search for information in order to support administrative and judicial reviews. This should be perceived as activities towards enhancement of awareness of justice. The awareness of justice, as shown by citizens, NGOs and officials, is low. Consequentially, that gives rise to elementary mistakes they often make when taking recourse to judicial protection (time expiry, wrong or none use of remedial action etc.)
| Par. 5 |
The provision in the second part of Subsection 5 of Article 9 offer the government a possibility to consider whether some improvements are relevant. According to this provision, the government should consider the establishment of appropriate assistance mechanisms to remove or reduce barriers to access to justice. If the government – having considered the provision- concludes that no mechanisms should be established, it shall not be deemed a breach of the Convention. There are some specific barriers to access to justice that are yet unmitigated:
Solicitors are very reluctant in taking up any environmental cases (these case are not attractive financially) and, in many a case, they are not particularly knowledgeable in matters of the environmental and administration law. Apart from solicitors, the counsels willing to provide legal aid and counselling are very few.
Reinforcement of Self-Administration Position – the Aarhus Convention does not deal with the position of municipalities and other units of self-administration being the competent entities. To enhance the environmental issues and to have the public more involved; it is most desirable that in some area, the position of self-governing units is reinforced (e.g. in exploiting mineral resources)
Pilsen Environmental Foundation
Americká 29, 301 38 Plzeň
Tel./Fax:++0420-19-74 55 905
Czech Republic
e-mail: pen@iol.cz
http://www.ecn.cz/pen
Bankovní spojení: ČSOB a.s., pobočka Plzeň, č.ú.: 8010 - 0104 247 403 / 0300