PROBLEMS AND QUESTIONS OF PUBLIC INTEREST LITIGATION IN HUNGARY AND THE CEE REGION Csaba Kiss EMLA, Justice & Environment 19 October 2012, Budapest, Hungary

What is the essence of public interest litigation in environmental matters?  Cases against planned use of natural resources or potential damage to the environment  Cases for implementing environmental liability  SLAPP cases

Why is it important? EC in the reasoning to the Access to Justice Directive Draft 2003 COM(2003) 624 final: „ A way of improving enforcement is hence to ensure that representative associations seeking to protect the environment have access to administrative or judicial procedures in environmental matters. Practical experience gained from granting legal standing to environmental non-governmental organisations indicates that this can enhance the implementation of environmental law. Better access to justice in environmental matters for representative groups advocating environmental protection will have numerous positive effects, the most significant being a general improvement of the practical application of environmental law. ”

Why is it important? Lord Justice Robert Carnwath 2008 „ […] if the legislative and administrative instruments of protection of the environment are not developed sufficiently or do not work properly, the courts and judges shall “fill the gaps”, namely by “creative interpretation of the constitutional laws”. […] To perform this role successfully, the courts need that there is enough active individuals and groups, willing to “carry on the risks” of participation in the legal processes. Aarhus Convention, if interpreted and used properly, can be seen as a tool for limiting these risks and enhancing the position of the members of the public actively involved in the environmental protection. ”

Barriers of access to justice Legal barriers  Lack of forum  Restrictive legal standing criteria  Difficult or inefficient injunctive relief Practical barriers  Timeliness  Costs  Lack of free legal aid

Lack of forum  No specialized environmental courts in Hungary  Greening Justice 2009: environmental ombudsman qualifies as a specialized legal remedy in environmental matters  No specialized environmental courts in the CEE region  Exception is Austria: Umweltsenat 1994

Restrictive legal standing criteria  In Hungary, legal standing of environmental NGOs is relatively liberal and broad  Registered association with an environmental objective working in the impact area of an environmental administrative case  CEE region: multiple solutions:  Slovakia: drawback in 2007 and return in 2010  Czech Republic: standing for impairment of rights – only procedural for NGOs  Austria: public interest, not at Administrative or Consitutional Court (ACCC/C/2010/48)  Slovenia: registration by MOE in environmental cases (vs nature cases)  Poland: authority decision on usefulness of NGO participation, public interest  Djurgarden case, Lesoochranarske Zoskupenie case, Trianel case, A2J Directive draft 2003

Difficult or inefficient injunctive relief  Conditions:  Periculum in mora  Fumus boni iuris  Prima facie case  Cross-undertaking in damages  Hungary, CEE region: hardly used in environmental cases or with prohibitive conditions  Slovakia: no need to decide, no need to reason  Czech Republic: impairment of substantive rights for NGOs irrealistic, preclusion in special process  Connects to issue of costs (see later)

Timeliness  No exact definition of timely  Hungary: average environmental administrative court case lasts until 2-3 years  Negative examples: Holcim cement factory (4 years without judgment), Szengtál landfill (6 years until judgment)  No data from CEE region – maybe a subject of future research?  ECHR (Art. 6 fair trial), ACCC (Kazakhstan)

Costs  Survey on the Price of Justice  Justice & Environment 2009 and 2011  Administrative cases are not prohibitively expensive – sometimes even cheap!  Administrative court cases alike  Highest cost categories: expert fees!  Hungary: LMCS (Metro 4), LMCS (Auchan Budaörs), Nimfea (wild boar farm)  Innovative solutions: Slovakia – one way cost shifting, Hungary – no court tax for NGOs (meeting criteria)  Room for improvement: shift of burden of proof, public interest litigation fund, etc.

Lack of free legal aid  Legal aid in all countries of the region  But:  Not specialized to environment  Limited capacities (time)  Not the top attorneys  Instead:  PIELs (EPS, VI, EMLA, Ökobüro, ELC, etc.) in Justice & Environment  Czech Republic: state legal aid and Bar Association legal aid  Legal clinics (e.g. OSI)  Pro bono lawyers (PILI)

Conclusion  No specialized environmental courts  Relatively OK legal standing criteria in most of the countries  Ineffective and expensive injunctive relief  Long lasting court proceedings  Relatively low court fees except expert fees  Weak legal aid  The region welcomes the A2J Directive!