Regional Overview: Central and Eastern Europe

Access to Justice

According to the laws in several countries, to gain standing a plaintiff must claim that his or her own rights have been affected. Moreover, it is not possible for an individual to sue simply on the basis that the action of a person or agency does not comply with the law. In many cases, only the prosecutor or other state authority is entitled to act in this case, and there is no possibility for individuals to file a lawsuit, for example, when an authority does not follow procedures spelled out in a law.

Regarding the specific rights of access to environmental information and public participation, the laws of several countries do not provide the right to go to court in case of denial of access to environmental information. The major exception is Hungary, where the Law on Protection of Personal Data and Public Interest Data contains such procedural guarantees (see below). Access to the courts is possible only when a party to an administrative proceeding asks for a judicial review of the administrative decision and claims the decision unlawful. Because of the strict conditions for becoming a party to administrative proceedings in some countries, it is difficult to use this possibility as a tool for enforcement of proper public participation. The new laws on Access to Environmental Information that have been drafted in the Czech Republic, Poland and Slovakia would give more guarantees to protect access to information rights. However, the draft laws still do not address participation rights. In some countries, the administrative code is being applied to such cases. (For more information, see the section below entitled "Legal Standing in Administrative Procedure.")

In Hungary, citizens who are denied information have a right to appeal to a higher body. In addition, the law requires the organs performing public duties to report annually to the Data Protection Ombudsman about the rejected cases as well as their reasons (Atv, Article 20, Paragraph 4). This framework exists, but it does not really function well in practice because the majority of the state organs do not submit such reports, even if requested. There is a possibility to ask for governmental measures in Hungary if a rule for drafting a statute or legislation is infringed, and there has been an example of NGOs successfully appealing to the Constitutional Committee of the Parliament. In this case, as mentioned before, the NGOs appealed the legislative drafting of a proposed act on the privatization of the forests that could have had dangerous consequences. (See the section above entitled "Public Participation in Lawmaking and Rulemaking.")

Legal Standing in Administrative Procedures

In addition to these laws, or sometimes instead of them, the issues of administrative appeal are regulated by the specific environmental legislation. For example, the Environmental Protection Law of Romania (Article 5) states that individuals have a right to appeal to judicial or administrative authorities directly or through legal entities. Most of the laws on EIA also regulate the issue of appealing a decision (with the exception of Latvia, where an EIA decision is considered to be final and can only be appealed to parliament to appoint the new expertise). There are also some specific laws that regulate issues of Access to Information (e.g. Hungary's Law on the Protection of Personal Data and on Accessibility of Public Interest Data).

In fact, appeals for refusal to provide information are the most frequently exercised administrative appeals in the region. In one example, the provisions of the EIA legislation were used by an NGO that became a party to a highway construction case near Plzen in the Czech Republic. The NGO appealed to the court the permit issued for the construction of the road and based its case on violations of the EIA procedure. The court granted the NGO appeal in August 1997. (see country report on the Czech Republic)

A unique situation exists in Bosnia and Herzegovina, where there are no administrative appeal provisions. The only possibility to complain about a violation of any legislation by public authorities and officials is to turn to the public attorney, who can then initiate a Request for Protection of Legality before the competent court.

Some countries of the region have established special administrative courts (according to provisions of the Estonian Constitution, Article 152; and the Law on Administrative Dispute of Slovenia). In Latvia, according to the Law on Court Order, there are no special administrative courts, but administrative judges preside over some regular courts. Both the Czech Republic and Slovakia have a procedure of "administrative judiciary." In Slovakia, for example, the Civil Court Procedure Act provides citizens and legal entities a possibility to challenge administrative decisions before special senates of the civil or general courts. In most of the other countries, administrative appeals can be submitted to the higher authority or to the regular courts, which usually comprise administrative, civil and penal sections or judges. In most of these countries, the appellant must first exhaust all available administrative remedies before the court will hear the case.

In all 15 CEE countries, standing in administrative appeal proceedings is limited to interested and/or affected individuals and, with exception of Hungary and Poland, interested and/or affected NGOs. The Attorney General of Hungary's letter from 1995 suggests that according to the definition of party in administrative proceedings the NGOs whose statutes include environmental protection as statutory activity should have general standing in administrative cases. However, in practice such standing is limited strictly to environmental issues. Similarly, NGOs in Poland have general administrative standing only if the activity concerned is mentioned among an NGO's statutory goals and only if public interest justifies the group's participation.

However, the Hungarian and Polish situation regarding NGO standing is rather unique. In most of the other countries, it is not an easy task for NGOs to prove they deserve legal standing. A relevant case regarding an NGO being a party to administrative proceedings was heard by the Supreme Court of Slovakia when the environmental NGO Wolf claimed a right to participate in the decisionmaking process regarding the enactment of a forest management plan for the area. The NGO based its right to standing on the assertion that the plan would affect the rights and legal interests of the NGO and its members. Also, the statutory goals of the NGO included the protection of forests (the necessity and means of forest protection are foreseen in the Forest Act of Slovakia, Article 1). However, the complaint was rejected by the Supreme Court of Slovakia on the grounds that the NGO was not a legitimate party to the proceedings. The Court stated in its opinion that for a person to have his or her rights influenced by a decision concerning a third party, this decision must reflect on the person's legal status. The people whose rights were allegedly violated (namely, the members of the NGO) could fall within this requirement and then the NGO representing their rights could be a party to the proceedings as well, but only if such persons were specified by the applicant³. Such interpretation of the Administrative Procedure Act substantially limits the public's ability to gain administrative standing. (See more details in country report on Slovakia.)

In Lithuania, court appeal of an administrative decision is possible only after going through all the levels of administrative authority, according to the Civil Procedure Code. However, this is applicable only in cases of access to information, participation in territorial planning and EIA. In the last two cases, citizens can only appeal the decision of the local self-government authority (Law on Local Authorities; Law on Environmental Impact Assessment; and Governmental Decision No. 1079 [September 19, 1996] on Regulations on Discussion of Territorial Planning Projects with the Public).

In the countries where there is a constitutional right to a healthy, clean or safe environment, it is theoretically not difficult to assert violation of such rights by an administrative decision and therefore obtain administrative standing. However, so far there has been no significant practice of using such appeals.

Legal Standing Against Government

In Estonia, individuals and NGOs may bring suit against public authorities if their constitutional rights are limited without any "test" used. Any association or union of people also can protect the right of its members or of other persons in case the statute contains such a right under the Administrative Law. There is no possibility to initiate a civil law procedure in Estonia in such cases.

In Bosnia and Herzegovina, individuals or legal entities that suffer damages from the actions of another individual or of a legal entity have the right to sue for losses and damages only in civil court. In several other countries, individuals and organizations, as well as informal groups of people, may bring an action before the administrative court when their legal rights or benefits are infringed by a final administrative legal act or decision (e.g. Slovenia and Hungary). In Hungary, based on the new Environmental Protection Code, NGOs in principle can also go to court if the governmental administration does not fulfill its responsibilities, according to the following provision: "In case of a hazard being posed to the environment or the environment is being damaged or polluted, organizations are entitled to intervene in the interest of the protection of the environment and to request the government organ or local government to take appropriate measures falling under its powers, or to file a lawsuit against the abuser of the environment" (KVTV, Article 99).

Affected and interested citizens or NGOs may also challenge governmental agencies in criminal courts in some countries, although they may not be allowed to file the suit. In Croatia, according to the new Criminal Code (N.N. 53, October 1991) and the new Law on Criminal Procedure (N.N. 53, October 1991), which includes an entire chapter on criminal offenses against the environment, criminal proceedings can only be initiated by an authorized prosecutor. In Hungary and Lithuania, there is no possibility to use criminal proceedings against government institutions in such cases, only against natural persons.

In the Federal Republic of Yugoslavia, including the Republic of Montenegro and Serbia, according to the Civil Procedure Code, an environmental lawsuit can be brought by "actio popularis" (Article 156 of the Federal Code of Obligations, 1978). This provision allows anyone, regardless of whether there is a legal interest, to bring an action with the purpose of protecting environmental rights that are of a collective character because the protected objects are invaluable and their significance surpasses a concrete, individual case. According to this, depending on the type of the request, three different actions may be brought: action to remove a source of danger or disturbance (i.e. cessation of an activity); action to take necessary measures to prevent damage or disturbance; and action for damages. This legal institution also exists in Croatia (Law on Civil Procedure, N.N. 53, October 1991), but there has not been much practice in any of these countries.

It is also possible in some countries to bring a case in civil court against government agencies using the possibility to sue an employer if an employee causes damage to somebody. This represents a special case of responsibility when the employer is an administrative body. In this case, in Hungary for example, the conditions are restricted: "For damage caused by administrative measures, compensation can be sentenced only if those who suffered damage had exhausted the regular remedies and the damage would not have been possible to avert through regular legal remedies."

In several countries where constitutional courts exist, such as the Czech Republic, Hungary, Poland, Slovenia and Yugoslavia, any citizen or NGO can file a motion in the constitutional court against parliament, the government, the municipal councils or other bodies that have failed to fulfill legislative responsibilities or have passed unconstitutional legislation. These public motions can also ask for the abolition of a law or regulation, but in Hungary, citizens must first exhaust all other possible legal remedies.

Environmentalists in some countries, for example in the Czech Republic, have found that the public are rarely successful in such cases. The constitutional courts are generally conservative and often use formal or procedural mistakes to refuse to deal with a case. It is more effective to use administrative courts in the Czech Republic, but in other countries, such in Hungary, environmentalists have successfully had lower decisions reversed by the constitutional court. (For comparison and more details, see the example of the DUHA Movement in the Czech country report and the section on constitution court in the Hungarian report.)

In several countries, citizens or NGOs cannot turn directly to the constitutional court. In Croatia, constitutional court appeals can come only from authorized bodies, and in Lithuania only from MPs, the government, the president or the courts. In Albania, NGOs have no standing; and in Latvia, Bulgaria and Romania, individuals and NGOs have no legal standing in the constitutional court.

If a public official fails to enforce the law or acts illegally, citizens and NGOs in most CEE countries can complain to the same body or to a higher body, or they can appeal to administrative court. However, this procedure is long and difficult. In Bulgaria, there are some provisions in the Urban Act for sanctioning such officials. In other countries, in such cases it is also possible to use the civil courts if civil rights have been breached.

In several countries, there are separate general rules regulating the performance of civil servants, and these rules contain provisions for such cases. For example, in Lithuania, under the Law of State Officials (1995), and in Latvia, under the Law on Public Civil Service (1994), disciplinary proceedings may be initiated against civil servants for violation of the law and other normative acts in performing official responsibilities, and disciplinary penalties are due. Also, the civil servant can be administratively, criminally or financially liable for damages. The Environmental Protection Act of Slovenia provides for a fine of not less than SIT 10,000 (USD 40) to be imposed on the responsible person in the Ministry of Environment or other state body, or department of a local authority for committing offenses listed in the provisions, including offenses which may be applied also for failure to ensure access to information concerning an environmental strain the official bodies may cause themselves (EPA, Article 15, Paragraph 2).

Compared with international legal instruments, the current situation of the CEE countries is rather good. In most countries there is a possibility for a review process, either by administrative or other independent court, to challenge an act or omission of public officials concerning access to information or participation rights, as required by the Sofia Guidelines, or the Aarhus Convention (Article 9). However, it is possible only in a few countries to challenge the acts or omissions by public authorities that in general contravene provisions of laws on environment in administrative or judicial procedures without certain restrictions (Estonia, Romania, Croatia, Yugoslavia), and these possibilities are not used often or at all in practice. The possibility to appeal to the constitutional courts and the institution of ombudsman in some countries gives access to an additional independent remedy besides the courts, however with the limitation of no direct access in others. (The institution of ombudsman is discussed later in this report.)

Legal Standing Against Polluters

There are other countries where the standing rights are broader. In Hungary, based on the Environmental Protection Act, NGOs can bring an action to civil court based on the provision mentioned earlier: "In case a hazard is being posed to the environment or the environment is being damaged or polluted, organizations are entitled to intervene in the interest of the protection of the environment and...to file a lawsuit against the user of the environment." In this case, "the party to the case may request the court to enjoin the party posing the hazard to refrain from the unlawful conduct (operation); or oblige the same to take measures necessary for the prevention of the damage" (KVTV, Article 99). Environmental Protection Laws give similar broad rights to individuals and NGOs in Romania, Estonia and Bulgaria, where the rights are extended to any physical person as well. The "actio popularis" in Croatia and Yugoslavia mentioned above also applies for actions against polluters.

In Slovenia, everyone has standing in cases of removal of immediate and/or significant danger to anyone. This right is based on the constitutional right to a healthy and clean environment. Individual citizens, their associations, unions and organizations may file a suit with the civil court demanding the suspension of a so-called "action into the environment" (activity or project) if such an "action" presents or will present an immediate threat to the environment, a critical environmental strain or damage, or a direct danger to the life and health of the people. Such an action can be prohibited if the likelihood of the above-mentioned effects can be demonstrated with reasonable certainty. The court may suspend or prohibit the commencement of the action only if it is not possible to prevent such effects by other means (EPA, Article 100). In addition, individuals or NGOs cannot bring suit against a polluter merely for exceeding prescribed emission standards; one of the above-mentioned threats must be present.

In Lithuania, theoretically everyone can appeal to court to hold a polluter criminally accountable if offense indications are clear enough (e.g. provisions of environmental legislation were breached, there is a negative influence on health or nature, etc.). In practice, this does not function easily because administrative measures must be taken against a polluter before the polluter can be called into criminal court.

While the broader standing rights constitute good examples, they do not go beyond the provisions of the Aarhus Convention, which says that only those individuals and NGOs that "meet the criteria, if any, laid down in its (the country's) national law" can enjoy such rights.

Remedies

There is a possibility of injunctive relief in most of the CEE region. This does not include, however, Bulgaria, Albania, the Czech Republic, FYR Macedonia or Estonia.

In some countries, such as Romania, it is not possible for NGOs or individuals to obtain interim or permanent injunctive relief against government decisions, only in civil courts in case of damages. There is, however, a possibility under the civil code similar to injunctive relief, called "presidential ordinance," which can be used in matters "to prevent damage," but its use is up to the discretion of the president of the court. There is not much experience with its use so far. In Slovakia, the courts have discretion to decide whether to give the possibility of injunctive relief. In Lithuania, it is not possible to obtain injunctive relief in cases against economic entities.

Poland, Slovenia, Montenegro and Hungary have a better legal framework and practice. In Poland, injunctive relief is possible in all courts and it is used in practice often, except for in the constitutional court. The situation is the same in Montenegro, where injunctions are possible before, during and after the completion of civil, criminal or administrative actions. In Slovenia, an interim injunctive relief may be requested before the administrative court only if conditions given in the Law on Administrative Dispute are cumulatively met: i.e. if the execution of the administrative act or decision in question will inflict irreversible damage on the plaintiff, the interim injunctive relief is not against public interest, and if the other party will not suffer from significant (i.e. irreversible) damage. (Articles 30.2 and 69)

Interim or permanent injunctive relief also may be demanded before civil courts. Interim relief is possible when an "action into the environment" (i.e. activity or project) presents or will present an immediate threat to the environment, a critical environmental strain or damage, or a direct danger to the life and health of the people. Permanent relief may be granted if the likelihood of the above-mentioned effects of an action can be demonstrated with reasonable certainty. The court may impose injunctive relief if it is not possible to prevent the above-mentioned effects of the "action" by other means.

Hungary also has a relatively good practice in this field. Because administrative courts use the same procedural code (i.e. Act. III on Civil Procedure [1952]), the same injunctive possibilities are available against government and enterprises. During a case, the court may order so-called "transitional measures" if "it is indispensable for averting pending damages or avoiding a change to the factual basis of the litigation or in other cases necessary for defending the requester's rights deserving special appreciation upon the condition in all cases that the harm caused by that would not exceed the advantage reached by the transitional measure" (Article 156, Paragraph 1).

There are additional legal tools for administrative bodies. For example, Act XX (Article 85, Paragraph 2 [1991]) on the competence and functions of local governments and municipal authorities generally enables the mayors, who have an environment and nature protecting function, to suspend activity of servicing plants producing hazardous noise or vibration levels. In the case of air pollution, mayors have the right to restrict or suspend the hazardous activity of a company performing services or manufacturing (i.e. any company) or to order the company to use other energy agents. Activities endangering natural resources under local protection can be temporarily banned for 30 days, and the deadline can be extended once. There are a number of different governmental decrees which contain similar provisions on air protection, nature conservation, and hazardous waste where extraordinary measures can be taken by different public authorities to stop the endangering or polluting activities and restrict, suspend or ban them. (For more details, see the Hungarian report).

While Poland, Slovenia, Montenegro, Hungary and a few other countries appear to have a working practice of injunctive relief, other countries do not allow for the concept at all. Even in the more advanced countries, there is not much positive experience so far. In short, there is a clear need for establishing the legal basis for such remedies. Since the courts have discretion in this regard, a positive court practice in individual or public interest environmental cases is also needed. While the Sofia Guidelines speaks about "suitable legal guarantees", the Aarhus Convention sets the obligations for providing "adequate and effective remedies, including injunctive relief as appropriate" that are "fair, equitable, timely and not prohibitively expensive." Still, it remains to be seen how the countries will implement these provisions.

Enforcement of Judgment

Enforcement of court judgments is rather weak in most of the CEE countries, and in several countries it is either not common or does not always happen. The reasons are numerous, and they include strong state, economic or business interests involved, as well as the weak enforcement measures and the long and difficult process of administrative, judiciary or complaints processes (especially in the Czech Republic).

There are different tools available for enforcement, including civil procedure, judicial execution, sanctions and other measures (e.g. sale deduction, auction of property, etc.). If a court order requires non-financial action and it is not done, the court may then levy fines. In Slovakia these fines can go up to SK 100,000 (USD 3,000). Also, there may be deadlines set for emergencies. For example, in Latvia, according to the Administrative Violation Code, awarded financial damages must be paid within 15 days.

In most CEE countries, enforcement of court decisions is not automatic; and in some cases parties must request it from an independent or private enforcement body (e.g. Hungary and Estonia). Since this body usually has limited staffing, enforcement cases suffer tremendous delay. This, naturally, lowers the percentage of voluntary compliance with court decisions. In Estonia, an institution called the Department of Surveillance operates in the bigger cities to ensure judgments are carried out. These institutions do not act on their own initiative; the party who wins a court case has the right to pursue fulfillment of the decision through these departments.

Sanctions against polluters, however, especially when they are small (which is the usual practice), are mainly enforced. However, there are no sanctions in cases of refusal to release information; therefore, court mandates to provide information generally cannot be carried out meaningfully.

Openness and transparency also could help improve enforcement in countries where court decisions are never published (i.e. Bulgaria and Romania).

Court Expenses

The only positive example is Slovakia, where environmental organizations, foundations, and charitable and humanitarian organizations are exempt from paying any court fees (Act on Court Fees, Article 4, No. 71 [1992]). However, lawyer and expert fees are still a problem. Another slightly positive provision exists in several countries where there is a rule that a public authority may be ordered by an administrative court to pay the other party's costs, but public authorities are not entitled to have their costs recovered (e.g. Poland).

Court fees in a civil case are generally 4 to 6 percent of the value of the object of litigation (Hungary, Poland). In Hungary, private attorney's fees hover around the same percentage. The cost of an expert opinion may go up to HUF 100,000 (USD 500), which is equivalent to the monthly salary of an excellent worker or a high-level administrative employee. While parties who win a case in Hungary can have the litigation fee and the expert fee totally reimbursed and have other expenses partly reimbursed, a victorious person in Bulgaria cannot be awarded costs in administrative cases and can only recover part of the fees and expenses as part of the judgment in civil cases.

In Slovenia, litigation costs are quite high. There are both attorney's and court's tariff systems, which estimate litigation costs based on the value of the subject matter in dispute. The general rule of civil procedure, which applies to administrative disputes as well, is that the loser in litigation covers all litigation costs. In certain circumstances such costs are shared between parties in litigation. Waiver or acquittal of litigation costs is possible only in cases where a party in litigation has a low income and is therefore not able to pay the costs (i.e. having to pay the costs would threaten his or her survival or the welfare of his or her family). The case is similar in Estonia, Latvia and Lithuania, but costs are not as high as in Slovenia.

The costs can constitute a real obstacle, especially when it is a civil case with substantial value involved or when it is a complicated development project requiring EIA or other administrative decisions requiring expert involvement. There are only a few countries in which there is access to legal or expert assistance by public interest law centers for free or for a small nominal fee.

Legal Assistance

Free or inexpensive legal assistance is crucial in light of the high expenses related to court cases. However, such legal assistance has not been developed in a number of countries because of the lack of practice with court cases and the lack of environmental and public interest lawyers. The main challenge for the public interest law centers that do exist is securing continuity for these services. Still, there tend to be more of these legal centers in the CEE countries than in Western Europe as a result of the perceived need for this type of legal assistance after the political changes of the early 1990s.