Article 9, paras.1 and 2 of the Aarhus Convention: overview

“IMPLEMENTING THE AARHUS CONVENTION TODAY: PAVING THE WAY TO A BETTER ENVIRONMENT AND GOVERNANCE TOMORROW”

SUBREGIONAL MEETINGAlmaty, Rahat Palace Almaty

Kazakhstan22-23 May 2012

Elena Laevskaya and Dmytro Skrylnikov

Overview

1. What are cases the Article 9, paras 1 and 2 are applied?

2. General approaches3. Article 9, para. 1 4. Article 9, para. 2

What are cases the Article 9, paras 1 and 2 are applied?

• Article 9, para 1 – in case of violation of right on information (applicable to the Article 4 of the Aarhus Convention)

• Article 9, para 2 – in case of violation of right on participation in decision-making on specific activity (applicable to the Article 6 of the Aarhus Convention and other relevant provisions of the Convention)

General approaches • Access to justice – access to the court or other body• Requirements established with regard to “another” body

(independence, impartiality and establishment by law)• Definitions (the public, public concerned, the public having interest,

the public authority) – article 2 of the Aarhus Convention • Procedures must ensure adequate and effective remedies

(including the injunctive relief) (Article 9, para 4, of the Aarhus Convention)

• Procedures must be fair, impartial, timely and not linked with extremely high costs (Article 9, para 4, of the Aarhus Convention)

• Decisions shall be given in writing; the public has access to decisions of courts and whenever possible of other bodies (Article 9, para 4, of the Aarhus Convention)

Article 9, para 1

The Party shall, within the framework of its national legislation, ensure review procedures related to

• Requests on access to information based on article 4 AC• Grounds for appeal: failure to satisfy the request for access to

environmental information • Form and types of violation: request has been ignored,

wrongfully refused in part or in full, inadequate satisfaction or other (this request has not been dealt in accordance with the provisions of Article 4 AC)

Article 9, para 1 Article 4 of the Aarhus Convention (AC) defines: deadline

to respond to the request on access to information (article 4, para 2, AC), form of the response (article 4, para 1 b) AC), reasons of rejection of the request (Article 4, paras 3 and 4 AC)

• Article 9, para 1, provides the procedure to consider any aspects of request on provision of information and appropriate response based on Article 4 AC.

Complainant could have received reply on the request and could have even received the information, however, article 9, para 1, AC might be still applicable

Article 9 para 1

• Applicant: any person requested the public authority to provide environmental information in accordance with article 4 AC

- Access to information and to justice must be ensured to the public including the foreign citizens and foreign organizations

Article 9 para 1 статьи 9

• jurisdiction: court of law or other body other body- «independent and impartial body established by

law»- Fulfills a quasi-judicial function; decisions must be

mandatory for the body holding the information, independent of influence of other persons in decision-making (recommendations of the ombudsmen are insufficient for article 9, para 1 AC)

Article 9, para 1

• Procedure must be prompt, established by law and free of charge or payment must be minimum

- «re-consideration» means that the same authority, which made a decision, re-considers it. Re-consideration does not withdraw right of the individual to apply to the court or “other body”

Article 9 para 9

• Decision must be approved (by the court or “other body”):

- final- Having mandatory nature for the public

authority- Reasons of denial in providing information

must be described in written form

Practice of the AC Compliance Committee– Article 9, para 1

• The courts do not possess clear guidance clear guidance as to the meaning of an expeditious procedure in cases related to access to information (Kazakhstan АССС/С/2004/1, para 21)

• Lack of provisions on standing in the national procedure law in cases related to access to information (same decision, para 23)

• Lengthy review procedure and denial of standing to the non-governmental organization in a lawsuit on access to environmental information (same decision, para 26)

• If a public agency has the possibility not to comply with a final decision of a court of law under article 9, paragraph 1, of the Convention, then doubts arise as to the binding nature of the decisions of the courts within a given legal system (Republic of Moldova АССС/С/2008/30, para 35)

Article 9 para 2

• Each Party shall, within the framework of its national legislation, ensure review procedures to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6, and, where so provided for under national laws and without prejudice to Article 9, para 3, of other related provisions of the Aarhus Convention

Article 9, para 2• applicant: «members of the public concerned»,а) showing sufficient interest (based on the national legislation but considering article 2, para. 5 AC - «NGOs meeting any requirements under national law hall be deemed to have sufficient interest»),

Or, alternatively,

• b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition

Article 9, para 2

• Subject of dispute: substantive or procedural legality of any decision, act or omission subject to Article 6 of AC and other relevant provisions of AC

• Jurisdiction: where to be appealed and procedure (court of law and/or «other body»- independent, impartial and established by law)

Article 9, para 2

• The possibility of a preliminary review procedure (where it is provided by national law)

- The Party may envisage a preliminary review procedure before an administrative authority. System of administrative review procedure does not aim at excluding the possibility to recourse to judicial review procedure; however, in many cases it is able to address this issue promptly and avoid the necessity to address the court

Practice of the Compliance Committee – Article 9, para 2

• Limited standing of the local NGO in judicial review procedure to challenge decision-making under Article 6 AC (when decision is adopted in other region) (Turkmenistan АССС/С/2004/5, para 19)

• Limited standing of NGOs («having a sufficient interest» is interpreted only by NGOs having objectives to protect environment in the charter) (Armenia АССС/С/2009/43, para 48, 81)

• Decisions related to types of activity under Article 6 of AC in the form of a legislative act (resolution of the Government) cannot be challenged by the public in the court (but only in the Constitution Court, where the citizens are not allowed to apply directly) (Armenia АССС/С/2004/8, para 35)

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