Environmental justice in Czech Republic & Poland

Environmental justice in Czech Republic & Poland; Pavel Černý, Amsterdam, 11 May 2016 lessons from the Aarhus Convention as a way to access remedy

Structure 1.Relation between abuses of human rights and the environment 2.Current situation on the ground – examples from the Czech Republic and Poland: infringements of the rights to respect private life, to protect health and property and for fair trial (prohibitively expensive costs of judicial remedies) 3.Aarhus Convention and its compliance mechanism opportunity to access remedies of HR abuses related to environment 4.Role of the EU and its member states Aarhus Convention as a part of the EU law 5.Recommendations for improvements potential of the Aarhus Convention in respect to challenging acts of private persons, reducing barriers of access to justice and influencing practice of state hold enterprises 3

Human rights and environment Relation between abuses of human rights and the environment – background: A number of ECHR judgments finding violation of the right to respect private life by impacts of environmental pollution failure of the state to take active measures to achieve fair balance between the interests of the community and the protection of individual right to respect for home and private life Aarhus Convention adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself UN Guiding Principles on Business and HR environmental laws, among others that directly or indirectly regulate business respect for human rights 4

Example I.: harms to private life and health The Czech Republic – Mittal factory case 5

Example I.: harms to private life and health The Czech Republic – Mittal factory case: huge steel factory in area where the air pollution limits are seriously exceed significant impacts on human health – respiration and cardiac problems, carcinogenic effects legal steps against both the public authorities (overall situation) and the factory (specific impacts) – problems with requirement of casual link between the situation and harm by the applicant courts request to prove that the impacts exceed „situation in comparable areas“ – limits of available private law instruments 6

Example II.: harms to private life and health Poland – A4 highway case Photo: Mikołaj Welon vel Welones 7

Example II.: harms to private life and health Poland – A4 highway case significant impacts on human health in populated areas – noise, air pollution project built by means of PPP – contract for 30 years the company derives income from the tolls, which are very high obligation not to build new roads and upgrade existing ones between Kraków and Katowice - many towns and cities lying between these two are experiencing huge communication problems and the local economic development is halted the contract is classified and the government declines to disclose it - one of the cities initiated court proceedings in this respect,but it lost the case. 8

Example III.: harms to protection of property The Czech Republic – Hyundai case 9

Example III.: harms to protection of property The Czech Republic – Hyundai case car factory in the village area, on the green fields, close to large protected area extensive state support for the foreign private investment – pressure on the local community and private owners the authorities acting as agents of the private investor – directed to provide all support needed instead of objective assessment agreement aimed to mitigate the most serious impacts not respected – courts refusing to enforce, calling it a „non-binding declaration“ 10

Example IV.: harms to protection of property Poland – Gubin mine case Photo: Bogusz Bilewski 11

Example IV.: harms to protection of property Poland – Gubin mine case plan to open lignite mine accompanied by a new power plant - one of the largest mining projects in the CEE region executed by state hold enterprises 10 villages would have to be destroyed, people forced to resettle, other irreversible damages of the region results of regional referenda (against the plan) not respected by the authorities – continuous support by regional and national governments 12

Aarhus Convention binding international treaty implementing Principle 10 of the UN Rio Declaration on Environment and Development main pillars – access to information, public participation in environmental decision-making, access to justice in environmental matters art. 9/3 – right of public to challenge acts and omissions by private persons and public authorities, which contravene environmental law (reference in EC recommendation on collective redress mechanisms) art 9/4 + 9/5 – remedies must be effective, fair, timely and not prohibitively expensive; Parties shall consider establishment of appropriate assistance mechanisms 13

AC compliance mechanism main function – reviewing of legislation an practice of the Parties with the provisions of this Convention – mostly on the basis of considering communications from members of the public nine independent members, elected for 6 years by Meeting of Parties to serve in personal capacity quasi – judicial procedure with a public hearing outcome – findings of compliance or non-compliance, possibly recommendations – binding when approved by MoP 14

AC compliance mechanism examples – Czech Republic – NGOs entitled to claim substantive rights in environmental cases; UK – prohibitive costs of court proceedings; Germany, Austria – scope of decisions subject to review monitoring of implementation of MoP decisions (endorsed CC findings) – annual reports, active role of the communicants and observers possibility of cautions and suspensions of rights by MoP 15

Role of the EU and its member states EU and all member states are parties to the AC AC based rights as regular part of national and EU environmental legislation (missing directive implementing art. 9/3 of the AC in the EU law) AC as such part of the EU law – implemented directly by the EU Court of justice national environmental laws shall be implemented in the „fullest extent possible“ with the objectives of AC (art 9/3 – effective judicial protection) synergic effect of the application of the AC and implementing legislation by national authorities, CJEU and ACCC continual development of common procedural standards of granting public rights to remedies in environmental matters 16

Recommendations for improvements Practical steps (litigation) -direct use of art. 9/3 and 9/4 of AC in cases of abuses of HR with environmental aspects by private (business) persons (present case law of the CC an CJEU concerning acts of public authorities can be used by analogy) -findings of CC and CJEU concerning e.g. prohibitive costs relevant for both public (administrative) and private law cases Systemic steps (regulatory measures) -AC and case law on art. 9/3 and 9/4 provides supporting arguments for establishing of collective redress mechanisms in EU law -when exercising ownership powers in state hold enterprises and providing investment support, public authorities shall respect relevant procedural and environmental requirements 17

Údolní Brno the Czech Republic