Access to justice
Content of the Convention
Access to Justice
The third pillar of the Convention (article 9) aims to provide access to justice in three contexts:
- review procedures with respect to information requests
- review procedures with respect to specific (project-type) decisions which are subject to public participation requirements, and
- challenges to breaches of environmental law in general.
Thus the inclusion of an 'access to justice' pillar not only underpins the first two pillars; it also points the way to empowering citizens and NGOs to assist in the enforcement of the law.
Access to information appeals: A person whose request for information has not been dealt with to their satisfaction must be provided with access to a review procedure before a court of law or another independent and impartial body established by law (the latter option being included to accommodate those countries which have a well-functioning office of Ombudsperson).
The Convention attempts to ensure a low threshhold for such appeals by requiring that where review before a court of law is provided for (which can involve high costs), there is also access to an expeditious review procedure which is free of charge or inexpensive. Final decisions must be binding on the public authority holding the information, and the reasons must be stated in writing where information is refused.
Public participation appeals: The Convention provides for a right to seek a review in connection with decision-making on projects or activities covered by article 6. The review may address either the substantive or the procedural legality of a decision, of both.
The scope of persons entitled to pursue such an appeal is similar to, but slightly narrower than, the 'public concerned', involving a requirement to have a 'sufficient interest' or maintain impairment of a right (though the text also states that these requirements are to be interpreted in a manner which is. consistent with 'the objective of giving the public concerned wide access to justice').
General violations of environmental law: The Convention requires Parties to provide access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which breach laws relating to the environment. Such access is to be provided to members of the public 'where they meet the criteria, if any, laid down in national law' - in other words, the issue of standing is primarily to be determined at national level, as is the question of whether the procedures are judicial or administrative.
Other access to justice requirements: The procedures in each of the three contexts referred to above are required to be 'fair, equitable, timely and not prohibitively expensive'.
Decisions must be given or recorded in writing, and in the case court decisions, made publicly accessible. Assistance mechanisms to remove or reduce financial and other barriers to access to justice are to be considered.
For more on the content of the Aarhus Convention, please refer to the Implementation Guide.