Access to Justice

The third pillar of the Aarhus Convention concerns the public’s right of access to justice and is reflected in the Article 9 of the Convention. This access to justice creates a level playing field between those defending individual rights (companies for example) and those defending the common good (environmental organisations) and also helps ensure consistent and effective implementation of the Convention’s access to information and public participation provisions.

Anyone, including individual citizens, NGOs, government officials, or companies can bring a case to court to enforce their right of access to information. However, when it comes to complaints about violation of public participation rights, or violation of environmental laws, this right is limited. The Convention encourages a broad interpretation of who has a right to bring a case to court.

The Aarhus Convention obliges Parties to abandon narrow restrictions on the availability of justice. Generally speaking, a person does not need an injury or special interest. The Aarhus Convention requires Parties to replace such old concepts with the new one: having a “sufficient interest”. A “sufficient interest” is determined by national law. The national law should give “wide access to justice”. If it does not, the law must be changed. National restrictions such as legislation or jurisprudence that are contrary to the objectives of the Aarhus Convention are not allowed. If public participation procedures are violated then obviously the public’s interests are harmed. To file an honest complaint about such violations is to show “sufficient interest” in the problem related to the decision-making procedure. NGOs do not have to prove “sufficient interest”.

Justice should not be “prohibitively expensive”. In many countries, the cost of justice had excluded citizens or groups from going to court. Parties have now committed themselves to preventing or removing such high cost barriers. Furthermore, the Convention requests procedures to be timely, fair and equitable.

In the case of a claim that participation rights have been violated, a person can challenge the “procedural legality” of the decision or act (or even a failure to act). The Convention also allows persons to challenge the “substantive” legality of such decisions, i.e. the actual substance of the decision may be challenged.

In addition to the above requirements, parties have to ensure that members of the public (including ECOs) have access to administrative and judicial procedures to challenge acts and omissions of both private persons and public authorities who contravene provisions of its national law. A country may use established criteria that a person must meet before suing private persons or public authorities, but it may not completely prohibit access to justice.

The Convention requires national governments to provide effective remedies, including injunctions. An injunction means halting an activity by means of a court decision.

In order to follow the implementation of this part of the Convention the special body was established. The role of the Task Force on Access to Justice is to support the third pillar of the Convention by exchanging information on issues related to justice and examining good practices of the implementation of the Convention’s Article 9, including financial and administrative barriers to access to justice, the decisions on remedies, criteria for standing, organisational capacity, scientific and technical expertise, and the use of alternative dispute resolution mechanisms. It is also assigned with the tasks of organizing capacity-building activities and conferences around access to justice involving representatives from ministries of justice, the judiciary and other legal professions such as public interest lawyers and specific NGO representatives. The lead country for this Task Force is Sweden.

To follow the work of this Task Force, please go the the Aarhus Convention website by clicking here.

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