1. The Aarhus Convention and the Access to Justice Pillar: Introduction to Article 9. 1
Stephen Stec
Tirana, November 2008

2. Aarhus Convention: A New Kind of Convention
Rights based approach
Link with human rights
Public and civil society empowerment

3. Stockholm to Rio
Principle 1 of Stockholm Declaration (1972) spoke of a right to a decent environment and the duty to protect the environment
Principle 10 of the Rio Declaration (1992) showed the way for individuals and groups to reach the goal of a healthy environment is to participate in decisionmaking
Prin. 10 set framework for 3 pillars of Aarhus Convention

4. Aarhus Convention has influenced EU legislation
EIA Directive
Information Directive
SEA Directive
Information held by Community institutions
PRTR (EPER, IPC)
GMOs
Standards reflected in many sectoral directives

5. Some general provisions (Art. 3)
Public authorities should assist and guide the public
NGOs should be recognized and supported within the framework
Legal system should be adjusted if necessary
Convention is a “floor” not a ceiling
Establishes minimum standards that can be exceeded
State must protect against public being penalized, persecuted or harassed for making use of rights
Non-discrimination on the basis of citizenship, nationality, domicile or seat

6. The Access to Justice Pillar
Access to Justice (Art. 9)
Mechanisms for enforcing the legal regime
9.1 – Access to Information
9.2 – Participation in Decisionmaking
9.3 – Public “Defense” of environmental law

7. Article 9.1 claims
Arise to guarantee rights under Article 4, where information request is:
Ignored
Refused
Partial information
is given

8. Definitions relevant to Arts. 4, 9.1 (Art. 2)
“Public authority”
Authorities at all levels – as well as public or private bodies performing traditionally public functions or providing public services that are acting under the control of a public authority
Exception – bodies exercising judicial or legislative functions
“Public”
Any person

9. Definitions relevant to Arts. 4, 9.1 (Art. 2)
“Environmental Information”
Virtually any info
In any material form
that can be connected to the environment
Relates to “elements” of the environment (air, atmosphere, land, landscape, soil, water, biological diversity etc.)
And their interaction
Factors affecting these elements
Substances, energy, noise, radiation
Activities or measures affecting these elements
Administrative measures, environmental agreements, policies, legislation, plans, programs
And cost-benefit and other economic analyses and assumptions used in environmental decisionmaking
AND this includes
Human health and safety, conditions of life, cultural sites and built structures insofar as they may be affected by the above

10. Art 9.1 –
Obligation to provide review of claims that right of access to information is violated
Judicial or other independent and impartial review
Binding decisions
Reasoned, written decisions
Where judicial review is available, another expeditious, inexpensive procedure shall also be available
Reconsideration by public authority or
Review by other independent, impartial body
Standing - any person principle
fast
free of charge or low-cost
before court or other body

11. Critical issues under Art. 4
No need to state interest (4.1)
In form requested (4.1)
Time limits (4.2)
Optional exceptions (manifestly unreasonable, too general, material in course of completion, internal communications) (4.3)
Optional exceptions with adverse interest test
Proceedings of public authorities
International relations, national defence, public security
Matters in the course of justice
Commercial and industrial confidentiality
Intellectual property rights
Personal data
Voluntary information
Protecting the environment (e.g., habitats of rare species)

12. Critical issues under Art. 4 (cont’d)
Response to initial request, forwarding to relevant authority (4.5)
Separation of information (maximum disclosure) (4.6)
Procedures for refusal to disclose (in writing, with reasons, including information on appeal possibilities, time limits and notice) (4.7)
Reasonableness of costs, publication of schedule of charges (4.8)

13. Typical cases under Art. 9.1
The filing of a case may lead to “voluntary” disclosure of the information by an authority to avoid going to court
Interpretation of deadlines – Conv requires not only a formal response but a substantive one
Information request must relate to information actually held (alternative basis for failure to collect relevant info – Art. 8 of ECHR)
Over-exclusion of information based on exemptions, failure to maximize disclosure
Reasonableness of costs – material costs can be recovered only, not labor

14. Typical cases under Art. 9.1 (cont’d)
“proceedings of public authorities exemption” should not be used for matters in the general public interest, but only for matters related to an ongoing specific investigation (Eur. Ombudsman)
Challenges concerning balancing done by public authorities – exemptions should be applied in a limited way
Challenges concerning requirement for legal basis for exemptions (e.g., “confidentiality of proceedings of public authorities, where such confidentiality is provided for under national law”)

15. Aarhus Convention: Third Pillar
Art 9.4 – Minimum standards for A to J
Adequate and effective remedies, including
Injunctive relief ‘as appropriate‘
Permanent and temporary
Fairness
Equity
Timeliness
Not prohibitively expensive
Decisions made in writing and
publicly accessible

16. Thank you Stephen Stec Central European University Earthconsult LLC