Article 9 of theAarhus Convention: overview Access to Justice Regional Workshop for High-Level Judiciary Tirana, 17-18 November 2008 Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl

Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl Acces to Justice Art.9.1-3: redress in 3 situations Art.9.4: requirements concerning remedies procedures Art.9.5: practicalities information assistance The scope of the third pillars on access to justice addresses basically three issues:    review procedures relating to access to information (Article 9 para 1 ), review procedures relating to access to public participation under Article 6 (and possibly other) provisions of the Convention (Article 9 para 2),    review procedures for public review of acts and omissions of private persons or public authorities concerning national law relating to the environment (Article 9 para 3) – so called actio popularis.   Article 9, paras 1 and 2 relate to the availability of administrative and judicial remedies to enforce the rights granted to the public under the passive access to information provisions (Article 4) and the provisions relating to public participation in decisions on specific activities (Article 6). Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl

Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl Art.9.1,2 and 3: redress Art.9.1: redress in case of abusing right to information (relation to Art.4) Art.9.2: redress in case of abusing right to participate (relation to Art.6 and possibly other provisions) Art.9.3: actio popularis – separate right to file a public interest law suit (relation to Art.1) Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl

Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl Art.9.4 - remedies Adequate Effective Include injunctive relief Under paragraph 4, Parties must ensure that the review bodies provide “adequate and effective” remedies. These remedies are to include injunctive relief when appropriate. When irreversible damage from a violation has already occurred, a remedy often takes the form of monetary compensation. When initial or additional damage may still happen an d the violation is continuing, or where prior damage can be reversed or mitigated, courts and administrative review bodies also may issue an order to stop or to undertake certain action. This order is called an “injunction” and the remedy achieved by it is called “injunctive relief”. In practice, use of injunctive relief can be critical in an environmental case, since environmental disputes often involve future, proposed activities, or ongoing activities that present imminent threats to human health and the environment. In many cases the resulting damage to health or the environment would be irreversible. Compensation in such cases is often inadequate.   Injunctive relief: Injunctive relief is a remedy designed to prevent or remedy injury. It allows a person to secure an order against another person requiring him or her to do something, for example, to provide access to information or access to a site, to hold a hearing, or to cease an unlawful activity. The Convention requires injunctive relief and other remedies to be “adequate and effective”. Adequacy requires the relief to fully compensate past damage, prevent future damage, and may require it to provide for restoration. The requirement that the remedies should be effective means that they should be capable of efficient enforcement. Parties should try to eliminate any potential barriers to the enforcement of injunctions and other remedies. Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl

Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl Art.9.4: review procedure Fair and equitable Timely Not prohibitively expensive Fair procedures require the process, including the final ruling of the decision-making body, to be impartial and free from prejudice, favouritism or self-interest. Fair procedures must also apply equally to all persons, regardless of position, race, nationality or other suspect criteria. such as age, gender, religious affiliation, etc. Equitable procedures are those which avoid the application of the law in an unnecessarily harsh and technical manner. Timeliness is also very important to review procedures under article 9. This requirement reinforces the requirement of paragraph 1 that Parties ensure an “expeditious” review process. Under the Convention, Parties must adhere to this standard of timeliness in providing any review process, whether by court or other review body. Many countries have already recognized the importance of timeliness to the administration of justice. For example, in Belarus, appeals and complaints regarding environmental administrative decisions must be considered within one month, with a possible extension of an additional two months. In Ireland, courts have the discretion to pull certain cases from the docket queue and deal with them immediately when the case involves issues of an urgent and time sensitive nature. Finally, the Convention requires Parties to provide review procedures that are “not prohibitively expensive”. The cost of bringing a challenge under the Convention or to enforce national environmental law may not be so expensive that it prevents the public, whether individuals or NGOs, from seeking review in appropriate cases. Various mechanisms, including waivers and cost-recovery mechanisms, are available to Parties to meet this obligation. Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl

Information and assistance – Art.9.5 Information - relation to Art.3.5 Art.4.7 Art.5.7b) Assistance - relation to Art.3.2 the Convention requires also, in para 5, that Parties ensure that information is provided to the public about review procedures and shall consider establishment of appropriate assistance mechanisms to remove financial and other barriers to access to justice. First, paragraph 5 requires Parties to provide information to the public on access-to-justice procedures. This reinforces the requirement of article 3, paragraph 3, that each Party shall promote environmental education and awareness on how to obtain access to justice. Such information can be provided in a variety of ways. One example is found in the Convention itself. Article 4, paragraph 7, provides that refusals of access to information requests must include information on access to review procedures provided for in accordance with article 9. A similar mechanism could be used in the issuance of decisions under articles 6, 7 and 8. Article 5, paragraph 7 (b), also requires Parties to publicize matters within the scope of the Convention, which would include matters relating to access to justice. Article 9, paragraph 5, also requires Parties to consider the establishment of “appropriate assistance mechanisms” to overcome barriers to access to justice. This builds on the provision in article 3, paragraph 2, that public authorities should assist and provide guidance to the public in seeking access to justice. Jendrośka Jerzmański Bar & Partners; www.jjb.com.pl