1. ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS IN THE SOUTH EAST EUROPEAN REGION Preliminary Findings dr. Csaba Kiss (EMLA) Expert Meeting, 24 February 2014, Geneva (CH)

2. Introduction 6 + 1 studies on the implementation of Art. 9 of the Aarhus Convention in the SEE Region UNECE Aarhus Convention Task Force on Access to Justice REC, UNECE, OSCE ENVSEC 6 + 1 national experts + 1 consultant Presentation at A2J TF meeting (February 2014) and at MOP5 (June 2014)

3. Methodology Questionnaire finalized 2013 summer National expert input 2013 fall National consultations 2013 winter Analytical summary 2014 February Discussion Finalization Presentation

4. Structure of Questionnaire Legislation Administration Administrative decision-making (remedies) Judiciary Access to information cases Public participation cases (standing) Practical features of access to justice

5. Findings: Context SEE Region in the center of interest for decades Major driving force: EU approximation Conservative regulatory models Some creative solutions with no systemic approach Painful lack of case law in all the Region

6. Findings: Legislation Modern Constitutions Full „Norm Pyramids” in environmental issues (major Act of Parliament + subordinate legislation) Large number of laws on specific topics Aarhus Convention ratified (except 1 case)

7. Findings: Administration Ministries of the Environment everywhere (local name and competence variations) Environmental agencies (usually 2 layers: regional and national) Public prosecutors with mostly criminal law competences Ombudspersons for reviewing maladministration

8. Findings: Administrative decision-making General Administrative Procedure Acts (no environmental procedure act) 2 level public authorities with an opportunity to appeal Public authorities for inspection and enforcement No general public information access to 2nd instance administrative decisions Members of public can report environmental problems

9. Findings: Judiciary Elaborate judicial infrastructures Basic, Regional, Supreme Courts, special Administrative Courts, Constitutional Courts Legally independent courts No lay person participation mostly No harmonized system of public information access to court decisions

10. Findings: Access to Information Cases Freedom of Information Acts but no access to environmental information laws Remedy quoted in the refusal of information Administrative appeal then judicial remedy Non-responsive public authorities and lack of legal knowledge in the public

11. Findings: Public Participation Cases Legal standing based on traditional affectedness doctrine (rights or legitimate interests) Exhaustion of administrative remedy as precondition for judicial remedy Art 9.3: partly affectedness based and partly not in the Region, in cases true actio popularis Appeals have automatic suspensive effect Filing lawsuit has no automatic suspensive effect but courts can be asked for injunction Mediation: laws in place but no practice

12. Findings: Timeliness Administrative appeal within 15 or 30 days Court procedure within 30 or 60 days No time limits for judicial decision-making Time limits mostly not sufficient or effective

13. Findings: Costs Administrative appeal non-expensive Court fees non-expensive except when proportionate to value of the case Payment exemption based on personal status, mostly not for NGOs Loser Pays Principle Free negotiation with attorney + Bar Association Tariffs as minimum High costs: evidence, bonds No legal aid in 3 out of 7, not for environmental cases in the Region

14. Findings: Effectiveness Lack of case law public willingness to sue public knowledge of the law legal aid clear criteria for injunctions knowledge by the courts of environmental issues and environmental laws

15. Findings of the Expert Meeting Similar problems throughout the Region partly due to common legal heritage Aarhus Convention: not sure on its direct implementation or what impact it could make Need for lawyers in the Region doing environmental cases Common problems – common solution probably as part of a large-scale regional project or initiative

16. UNECE, REC, OSCE, EMLA Thank You!