Article 9 of the Aarhus Convention - Access to justice in Slovenia

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1 Article 9 of the Aarhus Convention - Access to justice in Slovenia (Tina Divjak, legal advisor) Slovenia ratified the Aarhus Convention in May , which coincided with our accession to the European Union. In the year before, 2003, the Act on Public access to Information 2 was adopted, as a general act governing the procedure, which ensures everyone free access to information of a public character held by the State bodies, local governmental bodies, public agencies, public trust funds and other public law entities, holders of public powers and public service contractors. In 2004 new Environmental Protection Act 3 (EPA) was passed which further develops access to information on environmental field and regulates 2 nd and 3 rd Pillar of AC. It specifically defines non-governmental organizations undertaking environmental protection activities in the public interest. NGOs recognized under this law have the right to act as parties in the procedures defined in EPA. In this respect also the Nature Conservation Act 4 (NCA) is important since it regulates the procedure for the recognition of associations performing nature conservation activities in the public interest. These associations are given ex lege right to represent the interest of nature protection in all administrative and judicial procedures. Article 9.1: Access to justice under the Act on Public access to Information has proved to be very efficient. If the public body declines access to information or does not answer in the 20-days time limit one can appeal to the Information Commissioner. In 2006, the Commissioner received 15 applications filed against Ministry of Environment, out of which 1 was refused, 1 was granted, 1 was returned to MoE and other 12 were withdrawn because the Ministry disclosed the information immediately after the appeal was submitted to the Commissioner, which shows that in most cases the Ministry intends to disclose the information, but sometimes misses the deadline due to big workload on one hand, and on the other hand, respect towards the appellate body. 5 If the appeal is refused, the appellant can file a lawsuit against this decision. Since this instrument is well regulated and implemented, we assess that in this respect Slovenia is in full compliance with the AC. 1 Ratification act published in Official Journal on June 7 th, 2004, Ur.l. RS št. 62/ Ur.l. RS št. 24/2003, 61/2005 and 28/ Ur.l. RS št. 39/ Ur.l. RS št. 96/ Source: Office of Information Commissioner.

2 Article 9.2: Every person with a standing to initiate the procedure or to be a party in the administrative procedure can also appeal the decision. EPA says: Permanent residents of the area affected by the environmental impacts of a project have a legitimate interest in line with the regulations on administrative procedure if the impacts cause a disproportionate environmental burden or danger for human health OR if the person owns or possesses real estate, and thus is granted the status of accessory participant to the procedure. Members of the general public do not have a standing. The same is true for NGOs except with those with a status under EPA or NCA. Persons whose rights or legal interests have been affected by a final administrative decision have legal standing in the judicial procedure. It can also be granted in case the administrative decision has not been issued in the prescribed time frame. The standing for the judicial review is therefore limited to the same parties as in the administrative procedure. As also the Summary Report on the inventory of EU Member States s measures on access to justice in environmental matters concludes, the conditions to gain this status are quite strict, especially under EPA. Under EPA these NGOs have the right to participate in procedures in accordance with this law s provisions (procedure for the issuing of environmental consent for the planned activity (EIA) art. 64, procedure to environmental permit for the operation of installation which may cause large-scale environmental pollution art. 73); they are represented in the Council of experts, the Consultative Council and other forms of cooperation established under EPA or other regulations, passed on the basis of this law. NGOs acting in the public interest can also participate in the execution of other tasks of the ministry on the environmental protection field, especially by: - Giving viewpoints about particular questions of environmental protection, - Participation in the ministry s consultative bodies, - Participation in delegations, established for international conferences, together with the representatives of the ministry or the Government. Although under NCA the conditions are less strict, these NGOs has an ex lege right to participate in all administrative and judicial procedures concerning nature conservation. These different criteria in EPA and NCA resulted in different interpretations on the use of both regulations, on which NGOs reacted. Thus, the Ministry organized a workshop with NGOs especially to

3 overcome some difficulties regarding the status under EPA, such as the condition of the financial audit. On the basis of the workshop and experience with the implementation the amendments to EPA were introduced, the Government already passed them and the proposal is now in the parliament. The amendment says, If the NGO is granted the status of the NGO in a public interest, Ministry pays 50 percent of the actual costs of the financial audit. On the basis of different interpretations regarding the relation between the statuses gained under EPA and under NCA or other acts, the amendment that equalizes the rights of NGOs, which gained their public benefit status under other laws with the rights of NGOs under EPA if they have a financial audit. Thus, the Ministry recognised the strictness of the conditions and is working on weakening them as the dialogue with NGOs continues and new solutions are discussed. On the basis of Article 9.2 and Article 8 of the AC we got a first Constitutional Court s Decision in connection with the AC in Slovenia. The Constitutional Court ruled that because NCA does not regulate separately with procedural rules public participation during the preparation of executive regulations the NCA is not in accordance with the Slovenian Constitution. The decision sets a time limit of three months for the abolition the breach. The Ministry reacted very quickly and with the amendment to EPA introduced a new article with procedural rules regarding public participation during the preparation of all acts, not only executive regulations. With this quick response Slovenia showed its respect to the Constitutional Court and its dedication to the implementation of AC. Article 9.3 EPA contains a provision that allows the members of the public to initiate legal action even in those cases when they are not directly affected by the violation of the environmental law. EPA prescribes: (1) In order to exercise a right to a healthy environment the citizens may, as individuals or through societies, associations and organisations, file a request at the court of law that a person for an activity affecting the environment: - Shall cease this activity if it causes or would cause an excessive environmental burden or if it presents or would present a direct threat to human life or health, - Or that this person be prohibited from starting to engage in this activity if there is a strong probability that the activity would present such a threat. This provision goes further than Article 9.3 stipulates, but so far there is no case law regarding this.

4 Article 9.4 Injunction relief is possible under Administrative Procedure Act Art. 221: Competent body can issue the injunctive relief if, according to all circumstances of the case, it is absolutely necessary to regulate the relations or questions. The decision is issued on the basis of data known at that time. In the decision it has to be clearly stated that the decision is temporary. The competent body may link the issuing of an interim injunction to the condition that the opposite party is insured against any damages that may be created as a result of the issuing of an interim injunction. In the judicial procedure a plaintiff can at anytime before, during or after any judicial procedure demand from the court to issue a temporary injunctive relief to prevent imminent harm or damages until the lawsuit is finished and the court decision implemented. Injunctive relief can be granted if the plaintiff shows that an irreparable harm may otherwise occur or that the implementation of judicial decision will be otherwise prevented or hindered. Timely procedures: administrative decisions must be issued within one or two months, administrative judicial procedures in average last around 1,5 years. Not prohibitively expensive: In general, the costs to start an administrative procedure (around 3,55 EUR for the request and 14,18 EUR for the decision), to appeal or to file a lawsuit (63,44 EUR lawsuit in administrative dispute) against it are very low. The client can also request free legal aid in judicial procedure, if his/her income does not exceed the financial census (minimum monthly salary per family member). If the request for free legal aid is granted, the client has a right to a free lawyer and the exemption from the payment of the costs of procedure (judicial fee, costs for witnesses, expert witnesses, translations, etc.), but not costs of adversary party. Article 9.5: Slovenia has quite a few inspiring assisting mechanisms, some are general and some are developed especially for the better implementation of AC (workshops, public debates, invitations to consultations): Workshops, public debates on public participatory rights, Free legal aid, Publishing the court decisions on the Internet, Very informative web page of the Information Commissioner with decisions regarding access to information,

5 Invitations to consultations on SEA, EIA procedures on the Internet, etc. All of them, except for free legal aid, are voluntary actions; no obligation to practice them is set in Slovenian legislation. Some of them are part of the new program user-friendly administration, developed by the Ministry of Public Administration, aiming at more open, easier accessible administration. Furthermore, Ministry of Environment supports a two-year program of free legal aid for environmental NGOs. Conclusion Since the ratification of AC in 2004 Slovenia has taken steps towards it s implementation. We have come a long way, some mechanism are established by general acts and some developed especially for environmental matters. Nevertheless, we recognize that some open questions still remain. Slovenia will, together with the competent EU institutions and other member states, continue to work towards the effective implementation of the Aarhus Convention and respective EU directives. We are confident that through and open and stable dialogue with NGOs, which we have been practicing for quite some time now and which has grown more intense during our presidency of the EU Council, we will succeed to solve this questions in a proper way.