Access to Justice The Hungarian story

2 1. Starting point: Article administrative, judicial review where access to information is refused 9.1 administrative, judicial review where access to information is refused 9.2 administrative, judicial review where access to decision-making is refused 9.2 administrative, judicial review where access to decision-making is refused 9.3 general criteria on the review procedure 9.3 general criteria on the review procedure - to provide adequate and effective remedies, - fair and equitable - timely - not prohibitively expensive

3 2. Historic introduction - late 1980s, early 1990s: the legal foundations of a democratic society (freedom of association, data protection/access to information) - mid 1990s: comprehensive revision of the complete body of environmental law. Preparatory group of the 1995 Environment Framework Act chaired by an NGO. Result: guarantees of environmental democracy clearly spelt out - low confidence in the public administration, high confidence in the judiciary - the focus is on strong procedural and institutional guarantees

4 3. Precondition: How to become an NGO? Act II of 1989 on Associations Act II of 1989 on Associations No obstacles, strong guarantees No obstacles, strong guarantees Rules of establishment: Rules of establishment: 10 natural or legal persons 10 natural or legal persons Charter Charter Elect officials Elect officials to become an environmental NGO: reference to be made to environmental protection in the charter to become an environmental NGO: reference to be made to environmental protection in the charter Registration: Registration: Country courts Country courts 60 days, if no formal decision is taken: automatic 60 days, if no formal decision is taken: automatic

5 4. Access to justice with regards to environmental information basics: 1995 Environment Act and 2005 government decree basics: 1995 Environment Act and 2005 government decree access to justice regime: 1992 Data Protection Act (strict rules, strong guarantees) access to justice regime: 1992 Data Protection Act (strict rules, strong guarantees) procedure: 15 days to fulfill any request for environmental information, refusal must be made in writing in 8 days procedure: 15 days to fulfill any request for environmental information, refusal must be made in writing in 8 days review procedure: no administrative review > right to direct recourse to judicial review within 30 days from the receipt of refusal review procedure: no administrative review > right to direct recourse to judicial review within 30 days from the receipt of refusal county courts/a selected number of local courts county courts/a selected number of local courts fast track deliberation in court fast track deliberation in court lawfulness of refusal to be demonstrated by the authority lawfulness of refusal to be demonstrated by the authority

6 5. Access to justice with regards to decision-making the framework for decision-making concerning Annex I activities > “the environmental permitting procedure” (environmental impact assessment) the framework for decision-making concerning Annex I activities > “the environmental permitting procedure” (environmental impact assessment) legal standing: under the 2004 Administrative Procedures Act (same as under the 1959 act) > “any person whose right or legitimate interest is affected” legal standing: under the 2004 Administrative Procedures Act (same as under the 1959 act) > “any person whose right or legitimate interest is affected” environmental NGO: automatic legal standing in every stages of the procedure environmental NGO: automatic legal standing in every stages of the procedure

7 review procedure: review procedure: Administrative Procedures Act Administrative Procedures Act Appeal against any first instance resolution on the merit of the case (two stage procedure) Appeal against any first instance resolution on the merit of the case (two stage procedure) Civil Court Procedures Act Civil Court Procedures Act Appeal against all environmental resolutions of second instance (three stage procedure) Appeal against all environmental resolutions of second instance (three stage procedure) Altogether: 5 forums! Altogether: 5 forums! Effect of appeal: the resolution cannot be effected until it becomes final Effect of appeal: the resolution cannot be effected until it becomes final

8 6. Other avenues court practice: Supreme Court Uniformity Decision No. 1/2004 > opened the floodgate court practice: Supreme Court Uniformity Decision No. 1/2004 > opened the floodgate system of coordinated permitting procedure (lead/expert authorities) system of coordinated permitting procedure (lead/expert authorities) Decision No. 1/2004: wherever the environmental inspectorates are involved in a permitting procedure as expert authorities > environmental NGOs have standing Decision No. 1/2004: wherever the environmental inspectorates are involved in a permitting procedure as expert authorities > environmental NGOs have standing Examples: endless (construction, mining, spatial planning, etc.) Examples: endless (construction, mining, spatial planning, etc.)

9 7. Costs NGOs that do not carry out any business activity giving rise to the payment of corporate tax NGOs that do not carry out any business activity giving rise to the payment of corporate tax Exempt from any administrative and court fees in a personal capacity Exempt from any administrative and court fees in a personal capacity Other legal costs: if not successful at the trial > certain legal costs to be borne by the losing party (official formula + judicial appreciation) Other legal costs: if not successful at the trial > certain legal costs to be borne by the losing party (official formula + judicial appreciation)

10 8. Repercussions Legal situation easy to become an NGO easy to become an NGO unlimited legal standing unlimited legal standing broad range of permitting procedures open for participation broad range of permitting procedures open for participation cost-free legal challenge cost-free legal challenge several forums and procedures (recent study identified 8 different forums in the permitting of one major infrastructure project) several forums and procedures (recent study identified 8 different forums in the permitting of one major infrastructure project)

11 Sociological factors high NGO activity at national level (any major project appealed) and international level (Aarhus Compliance Committee, European Commission) high NGO activity at national level (any major project appealed) and international level (Aarhus Compliance Committee, European Commission) slow authorities slow authorities even slower courts even slower courtsResults deadlock (until all appeals are over > standstill) deadlock (until all appeals are over > standstill) effective blocking of permitting procedures for years effective blocking of permitting procedures for years misuse of the right to review misuse of the right to review

12 9. Responses Developers’ view - their rights to fair, equitable and timely procedure is not ensured Legislative responses 2003 Motorway Act 2003 Motorway Act First instance decision delegated to the national (rather than regional) authority > one less appeal First instance decision delegated to the national (rather than regional) authority > one less appeal First instance resolution can be executed irrespective of appeal (injunction is possible) > no dilatory effect First instance resolution can be executed irrespective of appeal (injunction is possible) > no dilatory effect Environmental authority no longer “expert authority” > no multiplication of forums Environmental authority no longer “expert authority” > no multiplication of forums Fast track deliberation in court Fast track deliberation in court Compliance Committee 2004: the Motorway Act remains within the limits of the Convention but no further cut- back Compliance Committee 2004: the Motorway Act remains within the limits of the Convention but no further cut- back

bill on the simplification of administrative procedures relating to projects of outstanding national interest 2006 bill on the simplification of administrative procedures relating to projects of outstanding national interest Approved by the government, not submitted to Parliament Approved by the government, not submitted to Parliament Does not concern environmental permitting procedure Does not concern environmental permitting procedure Pattern: Pattern: National authority at first instance National authority at first instance One stage judicial review One stage judicial review Fast track procedures Fast track procedures