access to justice under the aarhus...

Access to Justice under the Aarhus Convention

A user guide for the Former Yugoslav Republic of Macedonia

Access to Justice under the Aarhus Convention (2017) is an easy-to-use guide for civil society organisations on the rights, opportunities and avenues for access to justice based on national legislation and the provisions of the UNECE Convention on Access to Information,Public Participation in Decision-making and Access to Justice in Environmental Matters. It provides practical advice on litigation, thedevelopment and initiation of administrative and court procedures, the utilisation of the national ombudsman system, the AarhusCompliance Committee, and more. It is based on the 2004 publication Implementation of the Aarhus Convention: A User Guide for CivilSociety in the Eastern Europe and Caucasus Region and the content has been revised and adapted for the former Yugoslav Republic ofMacedonia.

The 2004 guide was written by Magda Toth Nagy, Marianna Bolshakova, Kaidi Tingas, Rodica Iordanov and Pavel Antonovof the Regional Environmental Center for Central and Eastern Europe (REC).

The present publication was adapted for the former Yugoslav Republic of Macedonia by Aleksandra Bujaroska.

The publication was reviewed by: Tsvetelina Borissova Filipova (Project Director) and Brendan Kenneth Duprey (Deputy ProjectManager) from the REC. The production of the publication was managed by Cecile Monnier (REC).

This publication has been produced under the project “Better Access to Justice in South Eastern Europe”, funded by the GermanFederal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety by the Advisory Assistance Programme forenvironmental protection in the countries of Central and Eastern Europe, the Caucasus and Central Asia and other countriesneighbouring the European Union (AAP). It was supervised by the Federal Environment Agency (Umweltbundesamt, UBA).Responsibility for the content of this publication lies with the authors.

1. Administrative procedures 1.1 Appeal to higher authorities 1.2 Appeal to the Administrative Court 1.3 The Ombudsman 1.4 Using the State Environmental Inspectorate and the Office of the Public Prosecutor

2. Standing: Who has the right to bring a case? 2.1 Standing for individuals 2.2 Standing for NGOs

3. How to go to court 3.1 Suing techniques 3.2 Which court to go to? 3.3 Timing 3.4 Court cases 3.5 Is the case admissible? 3.6 Preparation of the case to be heard 3.7 Other useful techniques

3.8 Ceasing activity while a decision is made (temporary relief) 3.9 How to get help (public interest advocacy) 3.10 Involving experts

4. Strategic lawsuits against public participation (SLAPPs)

5. Barriers to going to court 5.1 Counter-lawsuits 5.2 Costs 5.3 Social factors 5.4 NGO standing

6. International appeal process 6.1 Compliance Mechanism and review of implementation

7. European Court of Human Rights

Useful links

Table of contents

1

ACCESS TO JUSTICE USER GUIDEFORMER YUGOSlAv REPUBlIC OF MACEDONIA

The former Yugoslav Republic of Macedoniaratified the United Nations Economic Commis-sion for Europe (UNECE) Convention on Accessto Information, Public Participation in Decision-making and Access to Justice in EnvironmentalMatters (the Aarhus Convention) in 1999. Sincethen, it has adopted legislation that securesthe right to access to justice if information andparticipation rights are breached in violation ofthe third pillar of the convention, which dealswith the right to appeal against decisions andactions that obstruct access to information orprevent participation in decision making.

The Macedonian public tends to mistrust thecountry’s court access and appeal processes,whether due to slow proceedings, lack of faithin the judiciary system, or a general lack of familiarity with legal processes. However, moreand more administrative cases that challengedecisions by governmental bodies are beingbrought before the courts. These administra-tive cases follow an expedited procedure that makes it possible to complete these caseswithin a shorter timeframe and with fewercosts involved.

In fact, it is not all that difficult to win a case onaccess to information. When there is a nationallaw that says environmental informationshould be provided; and if there is a deadlinethat says when it should be done, it is verylikely that the court will decide in your favour.While you actually obtain the disputed infor-

mation, the side effect of your case may beeven more important — it could create aprecedent, and a person in a similar situationat a later date may have an easier case. In ad-dition, within a few years the authorities willlikely pay more attention to responses to re-quests, as it is much easier to simply provideinformation than to spend time in court.

The Aarhus Convention obliges the former Yugoslav Republic of Macedonia to draft andadopt legislation that establishes a properlegal framework for the implementation of thethird pillar of the convention. The nationalframework should also secure proper enforce-ment. However, the fact that, according to theMacedonian Constitution, international agree-ments are directly applicable and superior tonational law, does not relieve that party fromtaking the necessary legislative and othermeasures to ensure the effective implementa-tion of the convention1.

One may refer to Article 9 of the Aarhus Con-vention and resort to an administrative or judi-cial appeal in a court of law if:

1. The right of access to information is violated (Article 9.1)

● Information is provided, but is incom-plete and/or irrelevant to the request.

● The request for information is rejected.

● No reply is given within the deadline (i.e. 1 [+1] month).

Every constitution in the region guarantees the right of access to justicewhere one’s rights have been violated. Article 15 of the MacedonianConstitution guarantees the right to appeal against individual legal actsissued in a first instance proceedings by a court, administrative body,organisation or other institution carrying out public mandates. The former Yugoslav Republic of Macedonia has a developedprocedures for adjudication in civil, criminal and administrative cases.

2


2. The right to participate is violated (Article9.2)

● Notification about the decision- making procedure is not provided.

● The means of notification are insufficient to reach those concerned.

● Notification is issued at a late stage in the procedure.

● The notification does not contain the minimum required information.

● More detailed information about the project, programme or plan is not available.

● The procedure does not allow for submission of comments.

● Comments do not take due account of the following:

— The decision maker cannot reasonably explain why a certain comment was not incorporated in the final decision.

— The decision is not published.

— The published decision does not include the rationale for the decision.

3. Environmental laws are violated (Article 9.3)

● Acts or omissions of private persons who violate laws related to the environment may be challenged.

● Acts or omissions of public authorities that violate laws related to the environment may be challenged.

(This provision has several conditions, in-cluding that the right to bring a case is con-ditional on meeting certain criteria —usually an affected interest. This right isknown as “standing”).

Article 9 of the convention gives special sta-tus (2.2) to environmental NGOs, recognis-ing them as having an interest in cases ofaccess to justice and the right to participatein decision making, and therefore “stand-ing” to bring cases in these instances.

Identifying other potential sources

Asking for infoinformally Verify + complete

Satisfactory

Formulating request Identifying relevantauthority

Formal request for info

Response from author

Info need Unsatisfactory

Appeal to the higher authority

Appeal to the court

1 month

Figure 1. Steps to obtaining information

3


Access to an appeal procedure is usuallyreached through an administrative appealto bodies superior to the decision maker,and through the courts. Where any of themeans of access to justice cannot be usedsuccessfully, several procedures also existinternationally, including the convention’sown Compliance Mechanism, and in somecases the European Court of Human Rights.

1. Administrative proceduresPeople usually identify access to justice withcourts and hearings. However, there are sev-eral other ways to appeal against decisions.The most typical are administrative appeals,appeals to the Ombudsman and appeals to theOffice of the Public Prosecutor. In some cases,an administrative appeal is a precondition foran administrative court procedure.

You always need to consider what is the beststrategy for a given situation. Going to courtcan take up time, and significant costs are ofteninvolved. What follows is an explanation of fourways of access to justice, according to Mace-donian legislation. It should, however, be bornein mind that the effectiveness of the procedurewill vary on a case-by-case basis.

1.1. Appealing the decision to the higher administrative authority.

1.2. Appealing the decision to the administra-tive court.

1.3 Appealing the decision to the Ombudsman.

1.4 Submitting a complaint to the State Envi-ronmental Inspectorate/Prosecutor.

1.1. Appeal to higher authorities

This simply means that if you are not satisfiedwith the decision of an official, you can alwaysturn to a higher authority in the hierarchy.

According to the law on General Administra-tive Procedure, decisions issued in the first in-stance are subject to complaint to a higherauthority (e.g. a decision issued by the Ministryof Environment is subject to appeal to theState Commission in the case of decisions inadministrative procedures and procedures foremployment in second instances). A complaintto a higher authority may also be submitted ifa public authority does not act on the requestof the party within the defined timeframe, orby a specific deadline (e.g. within 30 days in thecase of a request for access to information). An appeal should be submitted within 15 daysof the receipt of the decision, unless otherwisedetermined by the specific law. The deadlinefor submitting an appeal is calculated from thedate of the receipt of the decision.

Administrative decisions adopted by a commis-sion (through an administrative complaint pro-cedure), and administrative acts for which theadministrative complaint procedure is not pro-visioned by law, are subject to administrativedispute (Administrative Court: see 1.2).

The complaint in an administrative review canbe sent either to the issuing body or directly tothe higher authority. If sent to the higher au-thority, the complaint is first forwarded to theissuing body to check its admissibility. Withinseven days from the submission of the com-plaint, the issuing body should examinewhether the complaint is admissible (i.e. grounded, timely and completed by an authorised person). If admissible, the issuingbody shall hand over the complaint and all related documents to the higher instance,which is then entitled to:

a) annul the first instance act (partially or com-pletely) and request the first instance (issu-ing body) to review the procedure withspecific guidelines for amendments; or

b) annul the first instance act, review the ad-ministrative procedure, and adopt a newadministrative act on the subject (if the

4


complaint is submitted on an act that hasbeen previously annulled by a higher instance, but the issuing body has not fol-lowed specific guidelines for amendments).

The administrative procedure for the com-plaint should be completed without delay, andno later than 60 days from the date of receiptof the complaint and all related records.

During the administrative complaint proce-dure, the administrative act cannot be imple-mented, except in cases when the lawspecifically stipulates that the complaint doesnot delay the execution of the act.

1.2 Appeal to the Administrative Court

The former Yugoslav Republic of Macedoniahas a special court that processes administra-tive lawsuits: the Administrative Court. In ad-ministrative disputes, the court decides on thelegality of administrative acts in the form of adecision adopted by the authorities, the gov-ernment and public enterprises (regarding dis-putes where the subject being decided on is asubjective legal situation or an individual ad-ministrative act). An administrative dispute isinitiated by filing a lawsuit. The lawsuit may besubmitted within 30 days of receiving, or beinginformed of, the administrative act.

An administrative dispute may be initiatedagainst:

● an administrative act adopted in the secondinstance (final administrative act);

● a first instance administrative act that can-not be appealed through an administrativeprocedure; or

● a competent authority that has failed toissue an appropriate administrative act onrequest or appeal, as stipulated by law.

An administrative act/decision may be chal-lenged if the law is improperly applied (sub-stantive issue); the act is issued by anunauthorised authority; or the implementedprocedure is not in accordance with the law(procedural issue).

In a lawsuit, the plaintiff (person or legal entity)must provide the following:

● personal/entity information (name, surnameand place of residence of the plaintiff; orname and address of head office of the legalentity, as registered in the Central Register);

● the decision (name, number etc.) againstwhich the lawsuit is lodged;

● the rationale of the claims and supportingdocuments (explaining the breach of law orhow the procedure was not properly imple-mented); and

How the law may be applied in practice

Ms. Ivanovska has requested informationregarding annual emissions of chemicals intothe air from the cosmetics plant near hertown. While processing the request, the headof the Macedonian EnvironmentalInformation Centre, Mr. Petrovski, notesthat the plant has requested to keep itsemission records confidential. The companyclaims that any disclosure would make iteasier for their competitors to replicateprotected formulas. Based on theconfidentiality request, Mr. Petrovski rejectsMs. Ivanovska’s request for information. Ms. Ivanovska then contacts a localenvironmental NGO. The NGO explains that,according to Article 55, Paragraph 3, of theNational Law on Environment, her requestfor access to emissions-related informationmay not be refused. Ms. Ivanovska thensubmits a formal complaint to theCommission in the interest of exercising herright to free access to public information.

FOR ExAMPlE

5


● a proposal on how the issue should be res-solved by the court (scope and direction ofproposed annulment or revision of the ad-ministrative act).

The lawsuit must always be accompanied bythe original act or a certified copy thereof.When the return of property or compensationfor damage is requested, the lawsuit must con-tain the specific amount to be compensated.

The lawsuit and all supporting documentsmust be delivered to the court, either directlyor by post. The filing of a lawsuit does not gen-erally mean that the administrative act againstwhich it is lodged will be suspended.

In cases where implementation of the adminis-trative act is likely to cause personal and/ormaterial damage to the complainant thatwould be difficult to repair, implementation ofthe administrative act may be suspended. Thesuspension should be in line with the public in-terest and must not cause irreparable damageto the opposing party. This procedure is initi-ated upon the plaintiff’s request. The courtmust decide on each request within a period ofno longer than three days.

The Administrative Court can dismiss the law-suit if:

● the lawsuit has not been submitted withinthe legal deadline;

● the act disputed by the lawsuit is not an administrative act;

● the lawsuit affects neither the plaintiff’sright nor the plaintiff’s direct personal inter-est based on the law;

● a complaint (in the second instance) shouldhave been lodged, but no such complainthas been filed;

● administrative dispute is not provisioned; or

● a legally valid decision on an administrativedispute procedure regarding the same mat-ter has already been adopted.

Generally, the Administrative Court in adminis-trative disputes decides in a non-public session.The court decides on the lawfulness of the actand the administrative matter itself. In the ver-dict, the court accepts the lawsuit as grounded,or rejects it as ungrounded. The authority thatadopted the administrative act/decision isobliged to act as determined in the verdict and toadopt a new or revised administrative procedure.Also, the court can decide on the administrativematter and issue a verdict on its own. An appealagainst the decision of the Administrative Courtis submitted to the Higher Administrative Court.

1.3 The Ombudsman

The institution of ombudsman came originallyfrom Scandinavia and in translation means“people’s representative”. The ombudsmanrepresents the interests of the people regard-ing governmental institutions. Some countrieseven have several ombudsmen that specialisein certain areas. In Hungary, for example, inaddition to the regular ombudsman, there isone that looks into matters affecting ethnic minorities, and another that deals with dataprotection and information.

The ombudsman undertakes investigations ofalleged violations of citizens’ rights through actions or omissions by public authorities, andissues opinions with regard to such violations.While the opinions of the ombudsman are notbinding, they tend to be highly respected.

InstitutionIn the former Yugoslav Republic of Macedonia,the Ombudsman is appointed by, and account-able to, the Macedonian Assembly, and is inde-pendent of the executive power. TheOmbudsman is elected for a term of eight years,with the right to re-election.

The Parliament appoints an individual person— usually a well-respected expert in the areasof human rights, constitutional law and related

6


matters. In the realisation of his/her functionsand competences, the Ombudsman is assistedby deputies elected by the Assembly.

TasksThe Ombudsman:

● reviews cases on the basis of submissionsfrom the public;

● reviews cases upon the request of Parliament;

● reviews cases on her/his own initiative;

● has investigative authority;

● analyses situations in areas relevant to thework of the Ombudsman, including humanrights, constitutional rights, informationrights, minority rights or any other areas forwhich the office is given responsibility;

● proposes initiatives to the Assembly foramendments and modifications to laws andby-laws, and their harmonisation with inter-national agreements; and

● submits proposals to the ConstitutionalCourt for evaluation of the constitutionalityof laws and the constitutionality and legalityof other regulations or general acts.

Accountability and independenceThe Ombudsman reports to the Assemblythrough annual reports summarising his/herfindings, cases and studies. Because the Om-budsman looks into the actions of the execu-tive branch, it is vital that the institution itselfis independent from the executive bodies ofgovernment.

AuthorityThe Ombudsman is not a judicial body. Al-though its findings often resemble judicialopinions and rulings, they are not binding. Inthe former Yugoslav Republic of Macedonia,the Ombudsman can:

● give recommendations, proposals, opinionsand indications on the manner of the removal of the determined infringements;

● propose that a certain procedure be imple-mented pursuant to law;

● submit an initiative for commencing discipli-nary proceedings against an official (i.e. theresponsible person); and

● submit a request to the competent PublicProsecutor for the initiation of a procedureto determine criminal responsibility.

When the Ombudsman issues an opinion onan individual case, this opinion is not bindingon the parties. But because of the nature ofthe institution and the stature of the individualwho holds the post, these opinions and rulingsare usually respected and followed. Moreover,if the case is ever brought before a court, it islikely that the court will form a judgementbased on the opinion of the Ombudsman.

Turning to the OmbudsmanThe procedure for the protection of the consti-tutional and legal rights of citizens by the Om-budsman is initiated by putting forward asubmission. The submission, addressed to theOmbudsman, should:

● be signed and contain personal data aboutthe person putting it forward;

● contain the circumstances, facts and evi-dence on which the submission is based;

● refer to the body, organisation, institutionor person to whom the submission refers;and

● define whether the person putting the sub-mission forward has already used legalremedies, and if so, identify which remedies.

A request to initiate a procedure may be sub-mitted in writing or orally in minutes. A requestfor a procedure submitted before the Om-budsman is tax exempt.

It should be noted that the opinion of the Om-budsman is not binding on the executive,meaning that, in our example, Mr. Petrovskican still refuse to provide information to

7


Ms. Ivanovska, even if the Ombudsman rightlyfinds that environmental information on emis-sions should not be confidential. If the execu-tive branch does not accept his/herrecommendations, the Ombudsman reportsthis to Parliament.

Although Ombudsman procedures are similarto judiciary processes, the Ombudsman is nota judicial body. You may still file a lawsuit in acourt of law at the same time as, or after, filinga complaint with the Ombudsman.

1.4 Using the State EnvironmentalInspectorate and the Office of the Public Prosecutor

The Macedonian State Environmental Inspec-torate is one of the institutions that can be in-volved in an out-of-court defence of rights(including environmental rights, rights to infor-mation, rights of participation, and others). Theinspectorate supervises the implementationand enforcement of the provisions of the lawon Environment (including provisions on ac-cess to information and public participation) by the responsible authorities. In case of non-compliance, the inspectorate can issue a fineand punish the body or bodies responsible.

Anyone (without stating an interest) may sub-mit a supervision initiative to the Inspectorate(i.e. initiate an inspection procedure). The ini-tiative may be submitted anonymously.

If the violation is defined as an offence in theCriminal Code, then it falls within the compe-tences of the Public Prosecutor. Tasks of thePublic Prosecutor relevant for implementingArticle 9 of the Aarhus Convention include:

● investigation of crimes;

● protection of human rights and freedomsfrom criminal violations;

● protection of citizens’ rights and interests;and

● carrying out preventive activities.

Benefits of Using the StateEnvironmental Inspectorate and theOffice of the Public Prosecutor The State Environmental Inspectorate and the Public Prosecutor review public initiatives forinvestigations related to violations of the law.

Some of the benefits of turning to the office ofthe State Environmental Inspectorate and Pub-lic Prosecutor are outlined below:

● As with most administrative complaints, ini-tiatives sent to the Office of the Public Pros-ecutor are not very time-consuming. Forexample, the Environmental Inspectoratemust act upon the initiative within sevendays. The Public Prosecutor has a maximumof 30 days to take action on criminalcharges.

● Sending an initiative to the State Environ-mental Inspectorate and Public Prosecutordoes not involve any costs.

● There is no need to provide lengthy legalbacking and references when submitting acomplaint (unlike when bringing a lawsuit to court).

What can the State EnvironmentalInspectorate and the Prosecutor do?The Inspectorate and the Prosecutor have theright to request any legal or natural person (including public authorities) to remediate anyviolated rights. Inspectors and prosecutorsalso have an obligation to take all possiblemeasures to prevent or terminate any possibleviolation of the law. Finally, the inspector andthe prosecutor must take measures to ensurethe safety of an individual if there is any possi-ble danger to an individual’s life or health.

Sending your initiative The best way to submit your initiative to the office of the State Environmental Inspectorateand the Public Prosecutor is to send it via regis-tered mail. This way you have written confir-

8


mation. You can also submit your initiative viaemail and telephone.

Another possibility is to submit a complaint directly to the office. In such cases, it is betterto produce the initiative in two copies and tokeep one for yourself. Bear in mind that the receiving officer should indicate the numberand date of receipt of the initiative on bothcopies. The legal timeframe will be calculatedaccording to the date written on the initiative.

The Inspectorate has a deadline of up to sevendays to act on the submitted initiative, whilethe Prosecutor has up to 30 days. The time iscalculated from the date on which your letter is delivered to the inspector/prosecutor.

The Office of the Public Prosecutor has a hier-archical structure. When submitting a com-plaint, your first destination is the district office.

How is it useful?Using a review by the Public Prosecutor is atactical step: if nothing else, it might give youmore time to prepare for a court hearing. Youmay be confronted with problems with lengthyprocedures and over-burdened officials at theOffice of the Public Prosecutor. But here itplays into your hands, as the complaint goesthrough every stage — all the way to the Prosecutor General.

2. Standing: Who has the right to bring a case?Macedonian legislation requires that adminis-trative complaint processes be fulfilled beforeone can turn to the Administrative Court.legally, this is called “exhaustion of adminis-trative remedies”. In practice, it means thatour Ms. Ivanovska has to appeal to the higherauthority before she can file a lawsuit with acourt. The legislator usually makes this a pre-requisite to avoid placing a further burden on

the already overloaded courts. The law thatregulates a specific issue or decision makingwill usually determine whether such a step is necessary.

2.1 Standing for individuals

To bring a case before any court you have toprove to the judge that you indeed have an in-terest in the case (i.e. that one or more of yourrights are affected). Here again, the standardsdiffer for civil and administrative matters. Todetermine whether you have standing youshould check whether the claim meets one ofthe requirements described below.

Access to justice regarding access toinformation(Aarhus Convention, Article 9.1)

This is the simplest case. It is enough to provethat you have asked for information and thatyou received a response that was not, in youropinion, satisfactory, or not fully satisfactory,or that there was no reply at all.2

Access to justice regarding publicparticipation(Aarhus Convention, Article 9.2)

Because the qualification of the public con-cerned is a precondition for participation in aspecific or strategic decision-making process,you must prove that you can be affected by thedecision, and describe how (e.g. you are a resi-dent in an area for which a permit is being is-sued, or in which a plan will be implemented).You do not have to prove that the procedurehas been violated in some way: this is some-thing that the court will decide in its ruling.3

Enforcement of environmental lawThis is probably the most difficult standing toprove. Most countries do not recognise the rightof an individual or legal entity to bring to courtcases that do not affect them individually, but are

9

rather an attempt to prevent violations of envi-ronmental protection legislation. The usual way,as discussed above, would be to try to deal withthe matter by bringing it to the attention of theState Inspectorate or the Public Prosecutor. How-ever, Article 9.3 of the Aarhus Convention refersto various possibilities for standing in law en-forcement cases. Practice shows that courts insome countries have ruled that any individualhas an interest in the protection of the environ-ment, corresponding both to the constitutionalright to a healthy environment and to the duty toprotect the environment.

Access to justice to protect one’senvironmental or civil rightsTort, or civil law, cases require proof that theplaintiff’s health, property or other materialrights have been affected by the defendant’saction. These are cases where compensation orrestoration to the previous state is usuallysought (e.g. where over-the-limit emissionsfrom a facility cause negative health effects andlead to extra costs for medical care).

2.2 Standing for NGOs

Article 9.2 of the Aarhus Convention grantsspecial standing to NGOs in cases of access tojustice regarding public participation. Accord-ing to this provision, any NGO is recognised as“the public concerned” and as having an inter-est in the case (regardless of whether or notany direct interests of the NGO itself or itsmembers are affected), providing the followingcriteria are met:

1. The NGO is recognised in accordance withnational legislation (e.g. registered as a non-governmental or civil society organisation).

The convention does not require the NGO tobe officially registered to have standing andbe recognised as “the public concerned”. Itdoes, however, refer to domestic legislationin determining what constitutes an NGO. Ac-

cording to the Macedonian law on Associa-tions and Foundations, NGOs must be regis-tered in the Central Register. An associationmay be established by a minimum of fivefounders, three of whom must have perma-nent or temporary residence in the formerYugoslav Republic of Macedonia.

Once registered, the NGO obtains an officialregistration document, tax status, seal andstamp, and legal personality.

The requirement to register NGOs can alsobe an obstacle to effective public participa-tion and access to justice, as discussedbelow (Section 5.4).

2. The NGO has environmental protection asone of its goals — for example, environ-mental protection is fixed as one of thegoals in the statutes of the organisation.Submission of a copy of the statutes andrecord from the Central Register is sufficientto prove standing in matters of public par-ticipation in decision making.

However, it can also be argued that evenwhere environmental protection is not writ-

PRACTICAl TIP

To be entered in the Central Register, an organisation must file an entryapplication and submit the followingdocuments:

● articles of incorporation;● statutes;● programme of activities; ● decision on election of the bodies and

data on the members of the bodies;● decision on election of the

representative by law, includingpersonal data;

● minutes from the founders’ assemblyor a report on the establishment; and

● a statement verified by a notary,signed by the representative,confirming that the performance of the activity is operating inaccordance with the law.

10


ten into the registration documents, regularorganisational activity in some areas of en-vironmental protection should be enoughto satisfy these criteria.4

3. How to go to courtRules regarding who can challenge a decision,and how, are generally set out in proceduralcodes. The law on Administrative Dispute isthe first thing to check if you need more infor-mation about bringing a case to court. Thischapter offers practical tips for going to courtand details of some of the procedural steps.

3.1 Suing techniques

Contrary to common belief, bringing a case tocourt is not always extremely difficult, drawnout and hopeless. Cases based on administra-tive issues, such as access to information orprocedural violations of public participation requirements, are mostly straightforward.Moreover, in many cases it is quite easy toprove a procedural violation.

Once you or your representative have drafted alawsuit, it can be filed with a court. Besides pay-ing court fees (see 3.4), there are several otherrequirements for submitting documents. Thefirst thing to check is whether the proceduralcode or relevant laws regulating a specificprocess require you to exhaust administrativeremedies first (see 1.1).

Putting together a lawsuitIt is always good to involve a professionallawyer to help you put together a list of docu-ments and evaluate all the supporting circum-stances and evidence. Although privateattorneys can cost you a lot, there are usuallyseveral pro-bono environmental attorneys oradvocates that will take your case for free.

The lawsuit document should contain:

● the name of the court to which the case issubmitted;

● the names and addresses of the plaintiffand defendant and, if applicable, the plain-tiff’s attorney;

● the act against which the lawsuit is lodged,and the lawsuit’s rationale (the lawsuit mustalso be accompanied by the original act or a certified copy);

● evidence that supports the claim;

● references to laws and regulations that support the lawsuit;

● the scope and direction of the proposed annulment of the administrative act;

● information about the object or the amountof the damage suffered, if a return of prop-erty or compensation for damage is re-quested (this request is further processed ina civil procedure);

● the value of the claim (if damage compen-sation is required);

● the signature of the plaintiff (in the case of a public entity, an NGO for example, it mustbe signed by a competent authority andstamped); and

● the date of submission.

Keep things clear and simple If you decide to prepare the document your-self, it is important to remember that thecourts are overloaded with cases and that thejudges are inundated every day with com-plaints, appeals and lawsuits.

A clear list of facts, dates and names, simplereferences to supporting documents and prop-erly listed attachments can be more helpful toyou and the judge than fancy legal language.Keep things clear and simple, and try to pro-vide as many references to the legal provisionsthat support your case as possible.

11


Even though the former Yugoslav Republic ofMacedonia does not use a system of prece-dent officially, references to previous decisionsin similar cases and judicial interpretationgiven to legal provisions by internationalcourts can be very helpful as well. The judgeonly has a week or two to decide whether yourcase is admissible and to set the hearing date.And, of course, a first impression of the caseand the parties is formed primarily on thebasis of the documents that you submit. Firstimpressions, as we well know, are important.

Submit enough copiesIn addition to the original set of documents, acopy should be submitted for each defendantin the case.

There is always a second chanceIf the documents are not correct or complete,or if the court fee (3.4) has not been paid, thejudge can stop the proceedings and informthe plaintiff about the missing elements and reset the deadline by which they must be submitted.

3.2 Which court to go to?

In the former Yugoslav Republic of Macedonia,administrative lawsuits are brought before theAdministrative Court.

The Administrative Court is a specialised courtbased in Skopje. There are no municipal, or pri-mary, administrative courts.

Administrative Court procedures are simplifiedprocedures compared to civil procedures,because matters of administrative dispute areusually simpler to decide on and do not require much evidence or lengthy debate between the parties (except in cases where anexpert report is required).

The lawsuit must be filed within 30 days of sub-mitting the administrative act to the party. If the

administrative procedure is not properly ful-filled, a lawsuit can be filed within 30 days fromthe day of non-fulfilment of the obligation.

In our case, Ms. Ivanovska would be able tosubmit a lawsuit to the Administrative Court ifthe decision received regarding the administra-tive complaint in the second instance was notsatisfactory, or if she did not receive an answerin time.

There are three tiers of courts in an adminis-trative procedure:

● The court of first instance is the Administra-tive Court (there is only one court, based inSkopje).

● The court of appeals is the Higher Adminis-trative Court, which reviews the case on itsmerits (second instance). An appeal to theHigher Administrative Court can be submit-ted due to actual violations of the provi-sions on the procedure; incorrectly orincompletely determined actual conditions;or the misapplication of the material right.

● The Supreme Court decides on extraordinarylegal means in cases against decisions of theHigher Administrative Court (third instance).

If you sue in the Administrative Court and lose,you can appeal to the Higher AdministrativeCourt; and if you lose again, you can still submita complaint to the Supreme Court.

Finally, there is also the Constitutional Court,which hears cases connected to the interpreta-tion of the Constitution and laws, and infringe-ments of constitutional rights. When it comes tothe Constitutional Court there is no lapse in theright to initiate procedures. The main compe-tences of the Constitutional Court are:

● control over constitutionality and legality,within the framework of which the Constitu-tional Court decides on the conformity ofregulations with the Constitution and laws,as well as the constitutionality of the pro-grammes and statutes of political partiesand associations of citizens;

12


● the protection of the freedoms and rights ofindividuals and citizens;

● decisions on conflicts of competence; and

● decisions on the accountability of the presi-dent of the republic.

According to the Constitution, the Constitu-tional Court shall annul or repeal a law if it isnot in conformity with the Constitution, or itshall annul or repeal other regulations or actsthat are not in conformity with the Constitu-tion or law. Constitutional Court decisions arefinal and executive.

Anybody can submit to the Court an initiativeto commence a procedure for assessing theconstitutionality of a law or the constitutional-ity and legality of another regulation. The submission of initiatives is not connected withany legal interest on the part of the personwho submits it.

The initiative should be appropriately com-posed in terms of form and conten — that is,the act being challenged, the reasons for chal-lenging the act, the constitutional or legal pro-

visions that are violated by the challenged act,as well as its initiator, should be clearly stated.

The challenged act must be a general one (toregulate undefined entities in the law, and notlegally specific only to the parties) and currentlyin force. The Court’s decisions may abrogate (exnunc) or annul (ex tunc) laws or other generallegal acts. With the decision to abrogate, thelaw or other regulation or other general legalact shall cease to apply from the moment ofpublication of the decision. On the other hand,with the decision to annul, the ConstitutionalCourt nullifies not only the act, but also all theconsequences of its practical application untilthe moment of the decision.

One example is Constitutional Court DecisionNo. 24/2009-0-15. The Court annulled the Deci-sion on the Spatial Plan for Unit Number 8,adopted by the Municipality of Ohrid. With thisdecision, the Court also annulled the imple-mentation of individual acts (construction per-mits) approved by the Municipality of Ohridthat were based on the annulled spatial plan.

System of courts in administrative procedure

Constitutional Court Supreme Court

Administrative Court

Higher Administrative CourtCourt of Appeals

Figure 2. System of courts in administrative procedure

Territorial jurisdictionThe Administrative Court exercises judicialpower on the whole territory of the former Yugoslav Republic of Macedonia. As is the casewith both the Higher Administrative Court andthe Supreme Court, the seat of the Administra-tive Court is in Skopje and it has jurisdiction onthe whole territory. The Administrative Courtdoes not have basic courts established in ei-ther single or multiple municipalities.

If a final verdict that concerns the right to com-pensation is adopted by the AdministrativeCourt, based on the verdict the plaintiff canfurther submit a request via civil procedure tothe Civil Court. In such cases, the plaintiff mustsubmit the compensation request to the basiccivil court that has jurisdiction (depending onthe administrative location).

3.3 Timing

The issue of timing is mainly relevant to casesof administrative procedure. The term maystart running from the time when the plaintiffhas learned about a violation of his/her rightsthrough an administrative action or omission.Alternatively, a shorter term can be calculatedfrom the time when a written rejection of anappeal was received from a higher authoritywhere an administrative appeal was filed. (Seeexample top right.)

The Macedonian law on Administrative Dis-pute provides a 30-day window during whichto submit an administrative lawsuit against anadministrative act (see Figure 3 on page 14).However, related civil requests for remedyingdamages can be brought to the Civil Courtwithin a three-year period.

3.4 Court costs

When one decides to go to court, it is impor-tant to come up with an estimation of howmuch the case might cost.

While sometimes the cost can be a significantobstacle — where major damages areclaimed, for example — most cases that canbe brought under the Aarhus Convention willnot be too costly.

13


Timing for administrativeappeal/lawsuit in practice

Ms. Ivanovska was refused informationfollowing her information request to theinspectorate. The one-month term startsfrom the day she receives the refusalletter. However, if she files anadministrative complaint first (forexample, appeals the refusal to the higherauthority) and her appeal is rejected, sheneeds to bring her case to theAdministrative court within one monthfrom the date she received the rejection.

FOR ExAMPlE

Table 1. Typical court expenses

Court fee All lawsuits

Expert costsMainly torts, other criminal law and substantive grounds–based cases

Investigationcosts

Torts, other criminal law and substantive grounds–based cases

Costs forbringing in witnesses

Torts, other criminal law and substantive grounds–based cases

Expense Relevance to cases

14


Calculation of court feesCases related to appealing decisions or failureto act by public authorities (access to informa-tion, procedural violations under public partici-pation provisions etc.), along with submittingan administrative complaint to the higher au-thority, are free of charge. Submitting a lawsuitto the Administrative Court requires a nominal,fixed fee of MKD 400.

In civil law cases that involve disputes regard-ing property or damages, the cost is a percent-age of the total value of the disputed propertyor damages. For example, if a lawsuit claimsdamages to health and medical expensesworth MKD 100,000, the court fee, according to Macedonian legislation, is 2 percent (MKD 2,000). The maximum amount of tax forsuch cases is MKD 48,000.

The plaintiff is required to pay the court feesprior to filing the lawsuit. The set of documentsfiled with the court contains receipts for paid

fees. In administrative cases (unlike civil cases),regardless of the outcome of the administra-tive lawsuit (in favour/not in favour of theplaintiff), the plaintiff must pay MKD 800 afterreceipt of the decision.

Waiver of feesThe plaintiff can ask to be exempted from thefee, or request a deferment or the opportunityto pay in instalments. A judge who also rules onthe admissibility of the case usually decidessuch requests. The usual grounds for a waiverare the material status of the plaintiff. Thecourt can release the plaintiff from paying taxin a civil procedure if, by paying the fee, thefunds of the plaintiff or members of his or herfamily will be significantly reduced.

Reversed paymentIn cases resulting from civil proceedings, wherethe complaint is upheld and rulings are made in

Figure 3. Timetable of administrative cases

Administrative complaint (complaint to a higher authority)

Violation of rights byadministrative act

Appeal to the Administrative Court

Decision

Notification to a public authority

15 days

30 daysHearing

1 month

30 days

Public authority reviews the procedure

and revises the act

15


favour of the plaintiff, the costs of the hearing,including transportation and legal aid, areborne by the defendant. In administrative cases,there is no possibility for reversed payment,even where the decision favours the plaintiff.

3.5 Is the case admissible?

In an administrative dispute, the court shallrule in a council. If the lawsuit is incomplete orincomprehensible, the president of the councilshall summon the plaintiff to eliminate gapsand flaws in the lawsuit. The plaintiff will thusbe instructed on what to do and how to act. Ifthe plaintiff does not eliminate the flaws in thelawsuit within the determined period, the Administrative Court can reject the lawsuit,unless it finds that the abnegated administra-tive act is null and void.

3.6 Preparation of the case to be heard

Generally, in administrative disputes, the Administrative Court reaches a decision in anon-public session. The court will hold a publicsession if:

● the complexity of the case makes it neces-sary to do so;

● it is deemed necessary to provide betterclarification of the administrative matter or to determine the actual conditions; or

● the court exhibits evidence.

This involves:

● plaintiff interviews;

● preliminary evaluation of proofs; and

● the identification of co-defendants, where necessary.

Figure 4. Steps following the submission of an administrative lawsuit

Incomplete documents

Plaintiff Lawsuit + supportingdocuments Administrative Court

Complete documents

Preparation of hearing

Date of hearing set

Hearing

Add missing documents within agreed timeframe

16


Merging claims and class action suits are usu-ally decided at this stage. After the completionof a hearing, the court adopts and verbally an-nounces its verdict. In complex cases, the courtmay postpone the verbal announcement ofthe verdict, but for no longer than three daysafter the hearing ends.

Appealing the caseEither of the parties in the case (i.e. the plaintiffor the defendant) can appeal the decision ofthe court of first instance to the court of ap-peals within 15 days of receiving the decision.

The appeal should contain the following:

● the name of the court to which the appealis submitted;

● the name, address and contact informationof the appellant;

● reference to the decision appealed andscope of the appeal;

● reasons for appealing and reference to rele-vant legislation;

● request of the appellant;

● list of documents attached;

● signature of the appellant; and

● powers of attorney, if relevant.

Appealing to the court of appealsThe appeal is submitted through the court offirst instance that hears the case and whosedecision is being appealed.

In the appeal, the appellant may not presentnew facts regarding the case, or new evidence,unless they refer to essential violations of theprovisions of the procedure. As a rule, theHigher Administrative Court decides on a com-plaint without a hearing. (See Figure 5 below.)

Cassation complaintThe decision of the Higher AdministrativeCourt may be challenged further in theSupreme Court, and the documents submit-ted are mostly the same as those shownabove. The Supreme Court, however, reviewsthe decision of the Higher AdministrativeCourt only on the basis of submitted docu-ments. If this court decides that the complaintis justified, the case is returned to the lowercourt for review.

3.7. Other useful techniques

Class actionA case can be much stronger if the plaintiff isnot an affected individual or organisation, butrather groups of people or multiple CSOs that

Figure 5. The appeal process

Court of appeals (Higher

Administrative Court) Supreme Court

15 days

30 days from the day when newcircumstances

occurred, but not laterthan five years

from the effective court decision.

Decision of the court of first instance

(Administrative Court)

17


have been similarly affected and are willing tojoin the case.

For example, a lawsuit challenging a smelter inthe former Yugoslav Republic of Macedoniawas supported by five CSOs and the Municipal-ity of veles. The lawsuit demanded state com-pensation for damages from the operation ofthe lead and zinc smelter within the city ofveles, which operated from 1974 to 2004. Thelawsuit was dismissed because the court couldnot determine during which period the harmfulpollutants were emitted — that is, whetherafter independence, or in the former Yugoslavia. The decision was subject to appealto the Court of Appeals and to the EuropeanCourt of Human Rights.

Using precedentIn all European countries, the UK excluded,when deciding a case, the court relies on legis-lation and, where needed, common sense. Butmore and more value is given these days to decisions of other courts, especially hierarchi-cally superior courts.

The Macedonian Supreme Court issues compi-lations of its landmark decisions. These arebinding on lower courts in future cases and arereference points that the judge of a lowercourt will consult when studying the case.

The main task of the Constitutional Court is tointerpret constitutional provisions and deter-mine whether certain actions or acts may con-tradict these provisions. These interpretationsare then used by other courts.

It is certainly worth checking beforehand ifcases on similar matters have been resolvedbefore. If so, reference to these will make yourlawsuit much stronger. Cases from the lowercourts may help, but will not be officially usedby the judge. The decisions and interpretationsof the Supreme Court and Constitutional Courtcan provide official reference points for thelower court decision.

3.8 Ceasing activity while adecision is made (temporaryinjunctive relief)

Temporary injunctive relief is a very importanttool that can be used in environmental cases,especially when challenging permits or licences.A judge grants temporary injunctive relief uponthe request of a plaintiff. In the context of envi-ronmental litigation, it is usually an order pro-hibiting an action to ensure that a future courtdecision will be enforceable.

Several issues should be kept in mind whendealing with temporary injunctive relief. One isrelated to the issue of depositing guaranteebonds. The court may order the plaintiff topost these bonds to compensate a defendant’slosses. For example, a judge can ask the plain-tiffs (e.g. local residents challenging the permit)to post a bond in an amount sufficient to com-pensate a construction company for lossessustained while waiting for a final decision,were the plaintiffs to lose the case. The Admin-istrative Court decides on such a requestwithin seven days from the submission of therequest for temporary injunctive relief.

3.9 How to get help (publicinterest advocacy)

As is well known, getting a lawyer to representa case can be expensive. On the other hand,administrative legislation can be quite com-plex. Some believe that lawyers write lawsusing special jargon so that they are needed tointerpret it. Whatever the story, legal assis-tance can certainly make your case stronger.

Fortunately, legal assistance can now be ob-tained without spending one’s life savings, in theform of public interest environmental advocacyorganisations. A list of public interest advocacyoffices and individual lawyers that take pro-bono cases can be found at: www.justice.gov.mk/PravnaPomos/

18


If you are unable to find anyone in the countryto help you bring your case to court, most of theentities listed on the above website will be gladto assist you with advice and, perhaps, contacts.

3.10 Involving experts

Cases that are based on substantive claims (aviolation of substantive rights, including theright to a healthy environment, property rights,compensation for damages, and other rights)often require proofs and expert opinions. Evena case that challenges a decision because youare not satisfied with how your commentshave been considered may sometimes requireexpert opinion. It is usually extremely difficultto challenge something as vague as “due ac-count of comments”, unless there is a clearprocedure established for it. However, if a deci-sion is clearly unreasonable, it is possible tochallenge it by demonstrating that the damageto the environment will clearly outweigh anypossible social or other benefits it might have.

The court may appoint experts, especiallywhere one of the parties is not satisfied with theexperts engaged by the other party. However, inmany cases you will need to base your claimson the expert opinions your side provides.

Where to find an expertThis depends on the field of expertise. Manytechnical experts are engaged in environmen-tal movements and can be contacted or evenengaged through their NGOs. Many of theseexperts may support your case pro bono, orfor a nominal fee.

Another place to look is local universities andresearch institutes, which have both expertiseand technical capacities. Finally, you can alsoengage other private experts.

It is important that your experts have good cre-dentials, which is sometimes more importantthan if they support the cause.

Other tipsWhile going to court will often bring a final res-olution to a problem, it is sometimes faster andcheaper to appeal to the higher authorities.

At the same time, although administrative ap-peals are faster, resolving your case in courtwill put the issue behind you, and the court decision can establish a precedent.

Always keep a record of what you communi-cate with the relevant authorities and stake-holders. When you submit comments orrequest information, make sure you haveproof of your communication (postage stamps,recordings, official emails etc.). Avoid unofficialand oral communication (except if recorded).These records will support your claim andserve as proof in any legal procedure.

4. Strategic lawsuitsagainst publicparticipation (SLAPPs)While the public, individuals and NGOs can suepublic authorities and private and state com-panies for a violation of participation rightsand environmental legislation, sometimes pri-vate entities or authorities use the courts toprevent active participation.

An example of a SlAPP lawsuit is the case of Mr. Igor Smilev from veles. Mr. Smilev publiclyopposed the reopening of a smelter that waspolluting the city of veles for 30 years (veles isone of the most polluted cities in Europe because of the smelter). He participated in andorganised protests and other events in veles togather support from local communities. Theowner of the smelter sued Smilev for libel andsought EUR 20,000 in compensation. The casewas brought before the court, and, after a longhearing, was closed without the issue being re-solved for either party. The purpose of such law-

19


suits is usually not so much to seek compensa-tion as to:

a) burden a participating member of the pub-lic with lengthy and complicated judicialprocedures to draw their attention from anydecision making in which they are attempt-ing to participate; or

b) create a chilling effect or atmosphere in whichothers willing to participate in this or any fu-ture process will think twice about their in-volvement for fear of being sued for speakingup or questioning a decision or proposal.

What can the government do?Although not yet widespread in the CEE andEECCA regions, SlAPPs are quite common inother regions. They are, in fact, attempts to pre-vent public participation and silence publicopinion. All countries should develop legislationwith clear guidelines, helping judges to decideearly in the proceedings whether a case is admissible if it abuses the process and is unfounded.

What can the public do?The only effective way to prevent SlAPPs is toSlAPP back: to bring a counter-lawsuit — alawsuit brought by the defendant against theplaintiff — claiming that the SlAPP lawsuit’smain purpose is to prevent public participationand claim compensation for costs (such as expert fees and legal aid).

What can the courts do?Courts can do the most to prevent private par-ties, and occasionally authorities, from abusingthe judicial system and public participation. In-deed, SlAPP lawsuits are an abuse of the courtsystem and disrespectful of the courts. If this isrecognised clearly in the judicial decisions re-lated to SlAPP cases, the practice will not beable to develop.

5. Barriers to going to courtWhile going to court is not as frightening or dif-ficult as many think, there are certain thingsthat can complicate the process and obstructaccess to justice.

Two main problems are: lack of judicial inde-pendence, and lack of trust in the justice sys-tem. The two are related. The first should bedealt with at an institutional level. And while itis an existing problem, it is also sometimesover-emphasised. The second problem is moredangerous. If you compare the number ofgoodwill judges with the number of citizensthat go to court with an open mind, the formermay in fact be larger.

The only effective way to face both problems isto bring cases to court, thereby educatingjudges in the environmental field and also cre-ating precedents.

Several other obstacles, detailed below, exist ata more practical level.

5.1 Counter-lawsuits

As the saying goes, “Attack is often the bestform of defence.” It is not surprising thatcounter-suits do occur in the context of en-vironmental cases.

A counter-suit is both a big obstacle and a use-ful technique. Its greatest relevance to publicparticipation litigation lies in the area of SlAPPsuits (strategic lawsuits against public partici-pation), as discussed above.

5.2 Costs

Despite low court fees in administrative cases,costs are a persistent problem where civil lawcases are heard.

The first problem appears where damages areclaimed (torts) and the court fee is calculated

20


as a percentage of the total value of the claim.In the famous veles smelter case, the GreenCoalition of veles appealed against the rulingof the court of first instance in the case “ThePeople of veles vs. the former Yugoslav Repub-lic of Macedonia”. On their way to justice, thepeople of veles “stumbled” over a “heavy”court fee of MKD 151,000 (approximately EUR 2,500). The fee was collected through vari-ous charity events organised by the coalition.

The second problem is related to the costs ofexperts and, sometimes, legal aid. These costsmight be very high indeed if the case is techni-cally complicated and requires extensive in-vestigation.

5.3 Social factors

Where decisions concern the suspension or ter-mination of activity, or when challenging deci-sions on permits for facilities and installations,the factor of social benefits often outweighsconcerns regarding environmental damage.One such example is the lignite power plant inBitola, a 699 MW plant providing 70 percent ofelectricity production in the former YugoslavRepublic of Macedonia. The plant requires anA-IPPC permit and should have implementedan operational plan for improving its technol-ogy in line with best available techniques by2014. Implementation of the operation planwould involve reducing the plant’s air, waterand soil pollution. However, due to the strategicimportance of the plant, the Macedonian Government decided to prolong the deadlinefor implementation of the operational planuntil 2019.

Another example is when residents near theveles smelter, most of whom had earlier workedat the smelter, had to choose between losing income and opposing the reopening of thesmelter (at the time, veles had the country’s second-highest unemployment rate). Such achoice is difficult to make, especially if one

takes into account elements of mistrust of thejudiciary and complicated technical features ofthe case.

5.4 NGO standing

The Aarhus Convention gives environmentalNGOs standing in court (i.e. the right to bring acase). To challenge public participation proce-dures in the decision-making process, an NGOdoes not need to be directly affected by the decision in the same way as an individual. It isusually enough for the NGO to be concernedwith environmental protection. This can beeasily proved by reference to environmentalprotection in the by-laws of the organisation orby providing proof of continuous activity in thefield. Problems might arise from the conven-tion’s reference to national legislation.

Article 9.2, which refers to Article 2.5 of theconvention, defines NGOs that can be recog-nised as the public concerned. These are “non-governmental organisations promotingenvironmental protection and meeting any re-quirements under national law”. This last refer-ence to national law may lead to a situationwhere only registered NGOs can use the rightsgranted by the convention, including the rightof access to justice and standing in a court.Where registration of civil associations is apure formality, such requirements under national legislation are rarely an obstacle.

However, a serious challenge to public accessto justice is presented in countries where regis-tration of civil associations is a complicatedprocedure. In fact, one might argue that if reg-istering an NGO takes an unreasonably longtime, is expensive, or is conditional on unrea-sonable requests, these facts in themselvesmake a party to the convention non-compliant.

The registration of NGOs is usually conditionalon the following: the organisation must have atleast five founding members; statutes that set

21


the goals and objectives of the organisation inaccordance with the Constitution; a non-profitstatus; and a decision as to the competent au-thority (executive director, president, or similar).

However, in the former Yugoslav Republic ofMacedonia, the issue with NGOs is not in theprocess of registration, but in the process ofoperation. The law on Associations and Foun-dations regulates their establishment, registra-tion and termination. When it comes tooperations and finances, some of the provi-sions of the Company law and the law on Ac-counting are applicable. This createssubstantial burdens for the day-to-day opera-tions of NGOs in the country, in terms of bothhuman capacity and financial cost.

6. International appeal processTo ensure that governments comply withAarhus Convention requirements, and wherethe domestic access to justice process fails citi-zens, other options are available. There are sev-eral possibilities to appeal violations at aninternational level. There are both judicial andnon-judicial options to choose from and, as withdomestic options, each has its pros and cons.

There is, however, one common preconditionfor both, this is the exhaustion of domesticremedies. Before one goes to an internationalcourt or committee, one should have tried allmeans of recourse available domestically.What this means in practice, is that if Ms. Doeis refused access to information by an environ-mental agency, she should try appealing to ahigher authority and/or to the court system, allthe way until the court of final instance. If sheloses in court, she can then try to submit hercomplaint to the Compliance Committee.

Another example would be if Ms. Doe appealsto the domestic courts and her case, although

well grounded, is not admitted. Or, if a hearingis so unreasonably delayed and prolonged asto render the decision meaningless, she couldbring her case to the European Court ofHuman Rights. At this stage, however, shecould not challenge a refusal of information,since the European Court only hears casesstemming from the European Convention onHuman Rights. She could, however, obtainstanding in the court regarding her right to dueprocess — a fair and equitable hearing andmeaningful access to justice.

These options are described in more detailbelow.

6.1 Compliance Mechanism andreview of implementation

Article 15 of the Aarhus Convention providesthat the Meeting of the Parties to the conven-tion establish a Compliance Mechanism to helpthe meeting to assess how individual partiesare complying with the treaty.

The Aarhus Convention Compliance Mecha-nism was developed and adopted at the firstMeeting of the Parties in 2002. The mechanismis progressive and innovative, partly due to thespecific character of the convention itself.

By ratifying the convention, the parties acceptobligations vis-à-vis their public, rather thaneach other. A mechanism to evaluate how theyperform domestically was thus called for.

The existing mechanism has two main parts:a review of implementation, and the Compli-ance Mechanism.

Reporting on implementationA list of criteria was developed consisting of sev-eral questions, based on which each party mustevaluate its own performance. This evaluationreport is then presented at each Meeting of theParties and disseminated to all the parties, thepublic, and anyone else who is interested.

22


Public involvementThe process agreed to by the convention’s gov-erning body requires that parties involve thepublic in the preparation of their implementa-tion reports for each Meeting of the Parties.

The most beneficial and efficient approach isfor the relevant public authorities (usually min-istries of environment through the AarhusConvention focal points) to consult the publicwhile working on the report. As in the processof compliance, this can be done by:

a. encouraging submissions of public com-ments on how domestic legislation andpractice comply with the convention; and

b. providing a draft official report for publiccomments.

Effect of visibilityRegular reporting on implementation and pub-lication of the reports are meant to prompt theparties to improve domestic implementation ofthe convention regarding both the necessarylegislation and practical implementation.

Compliance CommitteeIn addition to hearing regular implementationreports on compliance from the parties, theMeeting of the Parties has also established aCompliance Committee.

The Committee consists of eight individual ex-perts nominated by the parties, as well as envi-ronmental NGOs. Members are selected froma list of proposed candidates at the ordinaryMeeting of the Parties, and four members ro-tate every four years. A list of current memberscan be found at www.unece.org/env/pp.

How to nominate a memberof the Compliance Committee

Who can nominate?A government or an environmental NGO(meeting the requirements of Article 2 of theconvention for recognition as an environmen-

tal NGO, in accordance with national legisla-tion). Most countries require registration for el-igibility to be nominated.

Who can be nominated?● A national of the state that has signed,

ratified, approved or acceded to the con-vention (a signatory or a party state) may be nominated.

● The nominee is expected to have a highreputation in a field related to the convention.

● It is preferable, although not necessary, for the nominee to have legal experience.

How to nominateSubmit the candidate’s Cv (no longer than 600words), and any supporting materials youmight think useful, to the secretariat of theconvention at least three months prior to theordinary Meeting of the Parties.

Functions of the Compliance Committee● It examines and considers submissions from:

— parties;

— individuals or NGOs; and

— the secretariat of the convention.

● As a non-judiciary body, it makes recom-mendations regarding compliance by a par-ticular party in a particular case, or as aresult of non-compliance with the conven-tion in general.

● It consists of individual experts. Althoughnominated by the parties and NGOs, themembers are normally respected and well-

PRACTICAl TIP

If, for some reason, your NGO or groupdoes not meet the requirement of Article 2, but you know of a good potentialcandidate from your country, you candiscuss this with your Aarhus Conventionfocal point from the ministry and see if the ministry might be willing to proposeyour candidate.

23


known legal professionals who do not rep-resent their governments and act in an indi-vidual capacity.

● The compliance procedure is designed toimprove compliance with the conventionand is not a redress procedure for viola-tions of individual rights.

Communication from the public

One or more members of the public can com-municate via the Secretariat in writing (hardcopy or electronic form) to the Committee re-garding compliance by one of the parties. Thecommunication should be accompanied bycorroborating documentation (proof of allegedfailure to comply). In other words, it is similarto filing a lawsuit with a court. Several commu-nications have already been submitted to thenewly established Committee.

Detailed information on communications can be found at www.unece.org/env/pp/pubcom.htm

Direct communication from the publicCommunication from the public:

● must be made in other than written form;

● may be anonymous (individuals making acommunication may request the Compliance

Committee to keep their identity confidentialif they fear persecution or harassment);

● must not abuse the right to make suchcommunications;

● must not be manifestly unreasonable;

● must follow requirements related to formor subject matter set out in the parties’ de-cision on the Compliance Mechanism; and

● must be compatible with the Aarhus Convention.

ExceptionA party may notify the depository (UN officein New York) that it is unable to accept a com-pliance review on behalf of the committee forup to four years. This so-called opt-out provi-sion was made to allow parties to bring theirlegislation and practice into compliance withthe convention. They are given a fixed periodof time in which to do so. This is, however, anexceptional provision — and it is, of course, ade facto acknowledgement that the state isnot in compliance with the treaty. The tempo-rary opt-out notification should be made, inwriting, to the UN Treaty Office in New York(the same office where ratification, accept-ance or approval documents are usually sub-mitted). The party may withdraw the opt-outat any time.

Process

● The Compliance Committee notifies theparty alleged to be in non-compliance.

● The party then has up to five months toprovide explanations.

● Following the expiry of the five-month term,the Compliance Committee, as soon aspracticable (most likely at its next regularlyscheduled session), considers both thecommunication and the explanation.

● The committee may hold hearings (similarto those of courts).

PRACTICAl TIP

It is probably a good idea to involve legal experts who can help you preparethe documents.

The Committee operates in English. And, while communications will betranslated from either Russian or French,submitting a communication, or at leastits summary, in English will significantlyspeed up the review procedure.

24


What can a Meeting of the Partiesaccomplish?Based on the report and/or recommendationsof the Compliance Committee, the Meeting ofthe parties may take the following measuresregarding the party in question:

● provide advice, recommendations or assistance;

● request that the party concerned submit its strategy to the Compliance Committee,including the timing of how it plans toachieve compliance;

● recommend particular measures to be taken;

● declare the party to be in non-compliance;

● caution the party; and

● suspend a party’s privileges under the con-vention (this is more of a standard provisionand does not greatly affect the party): thisprovision, however, can informally be ex-tended to technical assistance provided tothe party in connection with the convention,such as project funding).

While all these measures are non-judicial andnon-confrontational in nature, non-complianceis a serious matter and should be taken seri-ously by states. The Compliance Mechanism,therefore, is a good tool through which to ad-dress compliance under the convention.

7. European Court of Human RightsThe European Convention on Human Rightsdoes not deal directly with environmental orparticipation rights. It has, however, taken sev-eral decisions that have established precedent,and has also interpreted some of the conven-tion’s provisions related to environmentalrights, as well as the right to privacy, the right ofaccess to justice, and the right to due process.

Going to the Strasbourg Court is a difficult mat-ter and usually takes years, but it is the ulti-mate resort and has the most impact in termsof individual cases, national court practicesand international interpretation.

The procedures of the European Court ofHuman Rights are very precise, and the ex-haustion of all available domestic remedies isan absolute precondition.

Useful linksUNECE Environmental Policy pageEC International Cooperation and Develop-ment: European Instrument for Democracyand Human RightsGuide to Environmental Law (in Macedonian) Constitutional Court of the former YugoslavRepublic of MacedoniaJudicial Portal of the former Yugoslav Republic of MacedoniaOffice of the Public Prosecutor of the former Yugoslav Republic of Macedonia (in Macedonian) Ministry of Environment and Physical Planning (in Macedonian)Access to Justice information website (in Macedonian)

Notes1 ACCC/C/2005/11 (Belgium)2 Access to Justice Handbook: Hungary Case 2 (p.151).3 Access to Justice Handbook: Ukraine Case 4 (p. 203).4 Access to Justice Handbook: Belgium Case 1 (p. 97); Germany Case 3 (p. 139).5 www.ustavensud.mk/domino/WEBSUD.nsf/ffc0feee91d7bd9ac1256d280038c474/55fb319bc93a044ac1257b44003bd4df?OpenDocument

http://www.unece.org/env/pp/introduction.html

https://www.academia.edu/20768891/%D0%92%D0%BE%D0%B4%D0%B8%D1%87_%D0%B2%D0%BE_%D0%B5%D0%BA%D0%BE%D0%BB%D0%BE%D1%88%D0%BA%D0%BE%D1%82%D0%BE_%D0%BF%D1%80%D0%B0%D0%B2%D0%BE_%D0%BD%D0%B0_%D0%A0%D0%B5%D0%BF%D1%83%D0%B1%D0%BB%D0%B8%D0%BA%D0%B0_%D0%9C%D0%B0%D0%BA%D0%B5%D0%B4%D0%BE%D0%BD%D0%B8%D1%98%D0%B0

http://www.ustavensud.mk/domino/WEBSUD.nsf

http://www.moepp.gov.mk

http://www.jorm.org.mk

http://sud.mk/wps/portal/central/sud/!ut/p/z1/04_Sj9CPykssy0xPLMnMz0vMAfIjo8zizdxNTAwsvA183ANCzQ0cfV0MPEIsvYzczc30wwkpiAJKG-AAjgZA_VGElBTkRhikOyoqAgARg_TJ/dz/d5/L2dBISEvZ0FBIS9nQSEh/

http://pristapdopravda.mk

https://ec.europa.eu/europeaid/european-instrument-democracy-and-human-rights_en

http://www.ustavensud.mk/domino/WEBSUD.nsf/ffc0feee91d7bd9ac1256d280038c474/55fb319bc93a044ac1257b44003bd4df?OpenDocument

access to justice under the aarhus...

Documents