Access to Justice

Regional international agreements and documents Europe

In addition to requiring the parties to ensure public access to information and public participation in decision-making, the Aarhus Convention obliges the parties to ensure access to justice in environmental matters. The Convention distinguishes between three categories of acts, decisions and omissions for which access to a review procedure must be ensured by the Convention parties. In effect, these three categories cover all kinds of acts and omissions relating environmental laws. First, access to a review procedure before a court or court-like body must be ensured for situations where a member of the public considers that his or her request for environmental information has been ignored or wrongfully handled. Second, access to a review procedure must be provided for members of the public concerned to challenge the substantive and procedural legality of any decision, act or omission relating to permits and permit procedures for specific activities. The Aarhus Convention provides criteria for determining the scope of “the public concerned”. Third, each party shall ensure members of the public access to administrative or judicial procedures to challenge any other act or omission, by private persons and public authorities, which contravene provisions of national law relating to the environment. In different ways, the Convention limits the discretion for the parties in defining the scope of persons with access to review procedures. Moreover, for all these situations, the parties shall ensure that the procedures provide “adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive.” The Aarhus Convention Compliance Comittee (ACCC) has also reviewed compliance with the provisions on access to justice, e.g. for Kazakhstan, Turkmenistan, Armenia, Belgium, Denmark, and Lithuania.

Besides the Aarhus Convention, the European Convention on Human Rights (ECHR) provides robust support for the right to access to justice in environmental matters. The European Court of Human Rights (ECtHR) has mainly considered the right to access to justice in environmental matters with regard to Article 6 ECHR and the right to a fair trial. It has then taken into account e.g. whether the concerns for a healthy and/or balanced environment amount to a right in the defending state, and whether the applicants had standing in applicable national laws; see Zander v Sweden. The Court has also considered access to justice in environmental matters in light of the right to respect to private and family life. In Taskin et al v Turkey and Giacomelli v Italy, it held that the right to respect for privacy and family life also include a right for the individuals concerned to appeal to the courts environmental decisions, act or omission where they consider that their interests or comments have not been given sufficient weight in the decision-making process. In Taskin et al v Turkey, the Court also found that a failure to comply with court decisions in due time amounts to a violation of the right to a fair trial.