Basic information
Convention on access to information, public participation in decision-making and access to justice in environmental matters, also known as the Aarhus Convention, is a break through document regarding the environment and democracy. _In the sense of the Aarhus Convention, the public stands as a partner to the public administration_ having the right to:
• obtain intelligible environmental information, • participate in decision-making • obtain legal protection.
These are objective fields, so called pillars of the Aarhus Convention.
Position of the Aarhus Convention in our legal order
Based on Article 10 of the Constitution of the Czech Republic, ratified and published international treaties are part of our legal order, i.e. it is not necessary to issue and approve a new Act or another legal regulation transposing provisions of such treaty. The treaty becomes a _directly applicable_ legal regulation, which may be referred to in the court and the court is obliged to know and interpret it, while maintaining the nature of an international treaty.
However, the rule applies only to the international treaties that stipulate sufficiently concrete rights of individuals. Therefore, based on "vagueness” of the entitlement of individuals and legal entities resulting from the Aarhus Convention, the Supreme Administrative Court has repeatedly refused to consider the Aarhus Convention directly applicable.
To claim rights created by the Aarhus Convention, the obligation to interpret national rules in conformity with the Aarhus Convention, would be fully sufficient. At first, Czech courts rejected this possibility as well, however, they recently started to change their attitude and are more likely to admit the possibility of conforming interpretation.
In connection to the position of the Aarhus Convention in the Czech legal order, its twofold character must be mentioned – not only it is an international treaty, but the same wording have been accepted by the European Community. Therefore, it is part of international and community law at the same time. It is not clear whether the dispute regarding nature and interpretation of the Aarhus Convention should be decided by the European Court of Justice as part of the preliminary ruling procedure or by the Czech courts.
Three pillars and their contest
I. Access to information:
Access to information, i.e. right to know, is the first pillar of the Aarhus Convention. This right connects administration with democracy and transparency.
Basically, it concerns everyone’s right to obtain official information possessed by the public administration authorities. Moreover, this request does not need any reasoning and the one requesting it does not need to be the citizen of the country.
What is environmental information?
Environmental information is data from various fields:
- State of the environment and its constituents: air, water, soil, landscape, natural habitats, etc.
- Biodiversity, including GMO
- Influences such as chemical substances, noise, radiation, emissions and flows, etc. that could have impact on the environment
- Plans, programs and implemented policies, legal regulation and economic analysis
- State of human health, public safety and living conditions
- State of cultural monuments and buildings, that could be influenced by the state of the environment
The public can require information in written (documents), pictorial, acoustic or electronic form. In each case, information must exist on some kind of a carrier.
Passive and active publication of information
The aim of the Aarhus Convention is to support providing information upon public request and from the public administration authorities’ own motion.
Publication of information upon request
In this case, the initiator is the public that requires specific information from the public administration authority. The authority is obliged to provide the piece of information at least within one month (the term can be, in special cases, prolonged, if necessary because of complexity or extent of the request).
Active publication of information
In this case, the public administration authority publishes information in easily accessible form of printed publications or on web site on its own initiative.
Who can I ask for information?
You can ask any public administration authority for information, i.e.:
- Administrative authorities (on national, regional or municipal level)
- Any individuals or legal entities
- Who operates in public administration, in particular in connection with the environment
- Or provides any public service in connection with the environment under the control of a public administration authority (in the sense of the precedent two categories)
Can the public administration authority reject to provide a piece of information?
Public administration authorities are entitled not to provide information in cases listed in the Aarhus Convention. Interpretation of these reasons must be very narrow and must account for the public interest. Moreover, the public administration authority must justify its decision and the applicant is entitled to challenge the decision by appeal.
II. Public participation
Public participation in environmental decision-making is the second pillar of the Aarhus Convention and is based on the Principle 10 of the Rio Declaration, which says: "environmental issues are best handled with participation of all concerned citizens, at the relevant level”.
What are the minimum requirements for public participation?
Shortly, the Aarhus Convention obliges, concerning public participation, the public administration to: provide information in sufficient advance for assessment of the complex issue. A necessary condition of participation is awareness. Therefore, it is essential to provide public with correct, accurate and timely information. Public participation must be allowed from the very beginning of the proceedings, from initiation the first proceedings, when all options are still open. Participation must follow the time frame stipulated in advance. While finally deciding the matter, the public administration authority must account also for the result of public participation. The public must be informed about the decision and if their opinion was not accounted for, the public administration authority must provide reasoning of such conduct.
Who can participate in the proceedings?
Only persons that are directly affected by the subject-matter have the right to participate in the proceedings. Determinative criteria of affected public must be stipulated in advance by a public administration authority (not meaning the right of the public administration authority to limit the affected public in any way, this determination should only serve for better approach to the affected public). Non-governmental non-profit organizations operating in the environmental area are, according to the Aarhus Convention, always part of the affected public.
What are the types of environmental decisions?
In the field of public participation, there are four types of decision:
- Issuance of permit for certain type of activity or device
- Preparation of environmental plans and programs
- Preparation of environmental policies
- Preparation of legal regulations
1. Public participation in decision on specific activities
The most common form of public participation is participation in decision on a concrete construction. This kind of participation is regulated by Article 6 of the Aarhus Convention.
What activities allow public participation in decision-making?
The activities are more precisely described in the Appendices to the Aarhus Convention. Generally, they are activities with potentially distinctive impact on the environment – extensive construction, mines, foresting and deforesting of estates, etc.
What are the rights of the public concerning participation in the proceedings?
Public rights concerning participation in the proceedings are the following:
- right to participate in the listed proceedings,
- right to be provided certain information from the proceedings in an adequate, timely and effective way (including the documentation on which the decision was grounded and the final decision),
- right for sufficient term for preparation for individual phases of the proceedings,
- right to participate in the early phase of the proceedings, when all options are open,
- right to file opposition,
- right for proper settlement of the public opposition in the final decision.
2. Public participation in preparation of environmental plans and programs
Article 7 of the Aarhus Convention offers the public the opportunity to participate in preparation of environmental plans and programs. The member states of the Aarhus Convention are free to choose instruments to involve the public. However, the result must be a transparent and fair frame for effective public participation.
Typical plans are plans to utilize and develop an area, transport, tourism, power industry, industry, water management, health care and hygiene planning as well as governmental subsidies or action plans.
3. Public participation in preparation of environmental policies
This group is separated from plans and programs, because it is vague and requires deep understanding of legal and political context. Despite that, the member states are obliged to endeavor to provide opportunities for public participation to the appropriate extent.
4. Public participation concerning legal regulation
The Aarhus Convention recognizes the role that the public can play at preparation of legal regulation. Article 8 stipulates responsibility of the public administration authorities to adopt necessary measures to ensure effective public participation, which can take the form of various advisory boards with public participation. It must be emphasized that the right applies to "preparation” of regulations, i. e. from the period, when the regulation is being prepared by the executive bodies – various administrative authorities - until it is submitted to the Parliament for approval.
The Aarhus Convention stipulates three steps, which must be at least taken to achieve this entitlement:
- sufficient time frame for effective participation
- proposal should be published or made available to the public by other means
- the public must have the opportunity to file opposition directly or through representative advisory bodies.
III. Access to justice:
Access to legal protection is final and necessary step concluding the Aarhus Convention. Without rightly set possibility of access to legal protection, all precedent entitlements become unenforceable, and therefore only empty statements.
Access to legal protection in environmental matters means the opportunity to challenge administrative acts or failures of administrative authorities and individuals with an independent and impartial body. The Aarhus Convention further divides the entitlement to three areas:
- legal protection of access to information,
- legal protection of public participation,
- general legal protection of the environment.
The Aarhus Convention obliges its member states to adopt the measures that would provide the public the access to legal protection with the emphasis on:
- availability of legal protection
- securing adequate and effective remedy
- honesty, fairness, patness
- possibility of protection without high costs
- publicly available decision in writing
Apart from that, the member states are obliged to inform the public on the possibilities of access to legal protection and consider the establishment of assistance mechanisms to reduce financial and other barriers to access to justice.
Who can claim legal protection?
The Aarhus Conventions assumes the possibility of access to justice in a very broad sense. As a result of this, everyone should have the opportunity to achieve protection of their rights recognized by the Convention in conformity with the national law.
History
The Aarhus Convention was negotiated on 25th June 1998 at the Conference of the environmental ministers of the UN Economic Commission "Environment for Europe” region. It took place in Danish Aarhus (thus the name). This Convention came into effect on 30th October 2001. The Czech Republic was not one of the states that ratified it by that day.
Until today, the Aarhus Convention was signed by 45 countries and European communities, and 40 countries and European communities have already completed the ratification process. One of them is also the _Czech Republic, which ratified the Convention in autumn 2004_(published under No.124/2004 Collection of International Treaties.).
The Aarhus Convention has a life of its own now, _it is constantly developing_. The Parties of the Convention regularly meet in Geneva. Every now and then there is a meeting at the highest level of the environmental ministers and non-governmental organizations. The aim of this chief body of the Aarhus Convention is to assess the development of the last years, determine a plan for future and prepare supplements.
History of creation of the Convention
The Aarhus Convention was being prepared during 1990’s by the UN Economic Commission for Europe as part of _”Environment for Europe”_. The series of conferences of European environmental ministers have been provoked by the Federal Committee for the Environment chaired by Josef Vavroušek, who invited the European ministers to Dobříš in 1991 to discuss the problems of the European environment.
In 1992, _Conference on Environment and Development_ was held in Rio de Janeiro. Principle 10 states that environmental issues are best handled with participation of all concerned citizens, at the relevant level On the national level, each individual must have a proper access to environmental information possessed by the authorities and must have the opportunity to participate in decision-making”.
It was followed by _Lucerne Environment for Europe Conference_ in 1993, which made public participation in decision-making the priority for the following period. After that, negotiations about the wording of a legally binding convention took place. The Aarhus Convention is the first to be prepared by individual states and international organizations in cooperation with representatives of civil society organizations.
The _ministerial conference of the UN Economic Commission_ in 1995 adopted the Directive on access to information and public participation in environmental decision-making.
_Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters_ was presented at the fourth conference in Aarhus in 1998. It was signed by 35 European and Middle-Asia countries including the Czech Republic. In 1999, _first meeting of the signatories_ was held in Kisinau, and the ratification process began.
In 2000, _second meeting of the signatories was held in Dubrovnik_ and the Czech Republic took lead of the working group for introduction of integrated Pollutant Release and Transfer Register (PRTR) and preparation of a binding protocol.
When it was ratified by 16th signatory country, _the Aarhus Convention became effective on 30th October 2001_. The Convention was ratified by: Albania, Armenia, Azerbaijan, Belarus, Denmark, Estonia, Georgia, Hungary, Italy, Kazakhstan, Kyrgyzstan, Macedonia, Moldavia, Romania, Tajikistan, Turkmenistan and Ukraine.
In 2003, in connection to ratification of the Aarhus Convention, the European Commission adopted _new directives_ on public access to environmental information (No. 2003/4/EC) and on public participation in respect of the drawing up of certain plans and programs relating to the environment (No. 2003/35/EC).
__The Czech Republic ratified the Aarhus Convention in 2004_ when it was adopted by the Parliament and confirmed by the signature of the President of the Czech Republic on 6th June 2004. Firstly, the Convention was approved by the Senate in 2003, the House of Representatives have adopted it in April 2004. 96 out of 146 present representatives voted for the Convention (ČSSD: 46, 0DS: 0, KSČM: 28, KDU-ČSL: 16, US-DEU: 6, vote No. 310, 30th session, 7th April 2004). The Convention was published in the Collection of International Treaties under No. 124/2004.
__On 17th February 2005, the Aarhus Convention was ratified by the European Community_. In 2005 it was ratified by the Great Britain, Austria, Spain and the Netherlands.
Aarhus Convention bodies activities
In 2002, _first meeting of the Convention Parties was held in Lucca, Italy_. The Czech Republic participated as an observer.
In 2003, the fifth "Environment for Europe” Ministerial Conference took place in Kiev, Ukraine. An extra-ordinary meeting of the Parties was held in the framework of the Conference, which adopted _Protocol on Pollutant Release and Transfer Registers (PRTR)_. The Czech Republic signed it along with 36 states and European Commission representatives. By the end of September, there were already 45 signatory states and the Convention had been ratified by 25 countries altogether including Belgium, France, Lithuania, Latvia, Malta, Norway, Poland and Portugal.
The Czech Republic ratified the Aarhus Convention in 2004_ when it was adopted by the Parliament and confirmed by the signature of the President of the Czech Republic on 6th June 2004. Firstly, the Convention was approved by the Senate in 2003, the House of Representatives have adopted it in April 2004. 96 out of 146 present representatives voted for the Convention (ČSSD: 46, 0DS: 0, KSČM: 28, KDU-ČSL: 16, US-DEU: 6, vote No. 310, 30th session, 7th April 2004). The Convention was published in the Collection of International Treaties under No. 124/2004. On 17th February 2005, the Aarhus Convention was ratified by the European Community_. In 2005 it was ratified by the Great Britain, Austria, Spain and the Netherlands. Second meeting of the Parties of the UN Economic Commission Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental matters was held on 25th-27th May 2005 in Almaty, Kazakhstan. The Parties submitted reports on implementation of the Aarhus Convention (see the summary report). Czech report was prepared in cooperation with Zelený kruh (see the Implementation Report).
The Almaty Declaration states, among other things: "We call on every party to consider how to do more than the minimum required by the Convention regarding access to information, public participation in decision making and access to justice in environmental matters. We also call on the Parties to avoid adopting measures which would limit the actual right for information, for public participation in decision-making and access to justice in environmental matters even in the cases, where such measures do not necessarily mean violation of the Convention” (see the Almaty Declaration)
At this meeting, _new regulation_ of public participation in decision-making and release of _GMO_ in the environment on purpose and GMO introduction to market was adopted as well as the Directive on promoting application of the Aarhus Convention principles at _international fora_ .
__Third meeting of the parties_ was held on 11th – 13th June 2008 in Riga. A strategic plan for the Aarhus Convention was approved and the mandates of task force on access to justice, electronic information tools and public participation at international meetings were renewed. Apart from the meetings of the Parties, there are annual meetings of the _Working Group for the Parties to the Aarhus Convention which assesses the state of implementation and prepares further discussions of the Parties.