Access to justice is the third and final pillar of the Aarhus Convention. Its existence reinforces the other two pillars of the Convention by guaranteeing their correct application with the help of the courts.
It grants the public and the associations representing the latter, the right to penalise for and redress breaches made by public authorities concerning access to information and public participation in the decision-making process. Access to justice is designed to cover a broad spectrum and also encompasses the possibility of contesting any violation of environmental law by a government agency or otherwise.
- Access to justice according to the Convention
- Who can exercise this right?
- When should legal action be taken?
- How to proceed
Access to justice according to the Convention
The Convention obliges States to set up appeal procedures insisting notably on their accessibility.
In short, the appeal procedures must be adequate and effective. They must also be fair, equitable and timely and not inordinately expensive. Legal decisions must be recorded in writing. Finally, court decisions must be accessible to the public.
Furthermore, citizens must be informed of the possibility available to them for instigating administrative or legal procedures. The authorities must also set up assistance mechanisms to remove or reduce financial barriers to access to justice.
The Aarhus Convention envisages access to justice as a right to be exercised in the broadest manner possible. Firstly, it establishes basic criteria that the States must respect, and secondly, it gives the latter the responsibility of determining this right in more detail. Subsequently, everyone may refer a case to the court or another appeal authority to ensure respect for his/her rights as defined in the Convention, while complying with the rules provided for in national law.
When should legal action be taken?
The Convention aims to be as far-reaching as possible on this point as well. Thus, any breach of its first two pillars (access to information, participation in decision-making) clearly justifies taking legal action.
Moreover, by recognising the right of every person “to live in an environment suitable for good health and well-being”, the Convention also covers all situations where this right is not guaranteed.
Furthermore, the Convention obliges the countries that have ratified the Convention (Party States) to abandon any narrow view of access to justice. “Sufficient interest” is enough to justify legal action according to the Convention. However, in practice, according to national law and the type of action, certain restrictions apply.
There are several possibilities in Belgium for access to justice within the framework of implementation of the Convention’s provisions or environmental rights.
The most frequent actions occur at an administrative level: independent bodies have been set up by both the Regions and the Federal State. Their decisions may force an authority that has not respected the Convention to remedy this failure. This is an easier course of action for plaintiffs in comparison to traditional legal action for instance, thus explaining its high frequency.
Judicial appeals are less common, undoubtedly owing to their greater legal complexity and the costs generated by these actions. This path is nonetheless open to everyone, even ordinary citizens. This type of appeal goes either to traditional courts, or to administrative courts like the Council of State.
The various types of appeal: which actions in which cases?