I. Access to information
The first pillar of the Aarhus Convention is access to information. In Czech legal order, access to information is regulated by two acts:
- Act on Right to Environmental Information (No. 123/1998 Coll.)
- Act on Free Access to Information (No. 106/1999 Coll.)
While Act No. 106/1999 Coll. applies as supportive act for cases Act No. 123/1998 Coll. does not regulate. However, two acts do not mean better regulation, on the contrary, division of regulation is more likely to cause additional problems.
Access to information is also regulated by Universal Declaration of Human Rights, in two different places:
Firstly as _basic political right – access to information ¬_in Article 17:
- paragraph 1: Freedom of expression and access to information are guaranteed.
- paragraph 5: Public administration and territorial self-government authorities are obliged to provide information about their activities in reasonable way. Conditions and execution are stipulated by law.
Secondly as one of economic, social and cultural rights in Article 35:
- paragraph 2: Everyone has right for timely and complete information about the state of environment and water resources.
How to acquire information?
- Citizen´s request to the authority
- Independent publishing and information activity of the authorities
What is environmental information?
Exercising specialized Act No. 123/1998 Coll., on Right to Environmental Information you can ask for any information regarding the state of environment and natural resources that the authorities have. Pursuant to the definition stated in article 2 letter a) of the Act, environmental information, i.e. information on the state of environment are considered written, pictorial or acoustic information on IT carriers or in other technically executable form concerning in particular:
1. state and development of the environment, causes and results of the state,
2. planned activities that could lead to change of the environment and information about measures taken by the authorities responsible for environmental protection or other persons to prevent or remove damage to the environment,
3. state of water, climate, living organisms and ecosystems, information about the impact of activities on the environment, about substances, noise and radiation emitted to the environment and results of such emissions,
4. use of natural resources and the impact on the environment and also data necessary for assessment of causes and results of such use and its impact on living organisms and society,
5. impact of constructions, activities, technology and products on the environment,
6. administrative procedures concerning the environment, assessment of impact on the environment, petitions and complaints in those matters and their results, and also information from documents regarding particularly protected constituents of the environment and other constituents protected pursuant to special regulations,
7. economic and financial analysis used in decision-making regarding environmental matters, if procured with the use of public resources,
8. international, national, regional and local strategies and programs, action plans, etc. the Czech Republic participates in, and reports on their fulfilment,
9. international obligations regarding the environment and fulfilment of the obligations resulting from international treaties binding for the Czech Republic,
10. sources of information regarding the state of the environment and natural resources.
What kind of information can you be denied access to?
Firstly, it could be the case that the authority does not have the required piece of information, since the information falls within the scope of activity of another authority. In that case, you must be informed at the latest within 15 days as from the day your request was received that the piece of information cannot be provided for such reason. If possible, you should be informed about the right authority to file your request with (Article 4 of the Act).
Also, it may be the case the required piece of information concerns some of the exceptions stated in the Act. This concerns in particular state secrets, protection of personal data, business secret or intellectual property protection (for accurate list, see Article 8 of the Act).
The authority must inform you about rejection at the latest within 30 days (Article 9 of the Act). Rejection to provide information takes the form of an administrative decision.
In case the authority neither provided the requested information nor issued decision on rejection to provide information, it is considered rejection to provide information. This legal assumption means that inactivity of the authority, i.e. failure to provide information and to issue the decision on rejection to provide information in the statutory term has the same effect as decision on rejection to provide information.
Such decision could be appealed with the authority superior to the authority that issued the decision, or failed to decide, if applicable (see Article 14 of the Act).
Whom request for information?
You can ask any public administration authority or territorial self-government authority that fulfils tasks in the area of environmental protection (in particular climate protection management public authorities, water authorities, environment protection authorities, public administration authorities for waste, national forest management, agricultural land resources protection authorities, as well as organizations established by these authorities or entitled to conduct certain activity (more accurate list of obliged authorities and legal entities is stated in Article 2 letter b) of the Act).
Authorities you may ask are e.g. Ministry of Environment, Elbe Basin, Czech Environmental Inspectorate, Agency for Nature Preservation and Landscape Protection, protected landscape areas and national parks management, T. G. Masaryk Water Research Institute, regional councils, municipal authorities, Prague City Hall, etc.
How to request information?
You can request information in any form: in writing, orally, by phone, e-mail (see Article 3 of the Act). In your request you can also propose the form or way of access to information.
In what time do you get your answer?
The authority should answer immediately if possible – without undue delay, at the latest within 30 days as from receiving the request (see Article 7 of the Act). The term may be prolonged to a maximum of 60 days (see Article 7 of the Act).
If the piece of information has been already published, the authority may refer you to the source of the piece of information, i.e. provide you data that will allow you to search and acquire the information (see Article 5 of the Act).
How much cost information?
Providing information is basically free (Article 10 of the Act). You can only be asked to pay the costs of copying, CD, DVD and postal fee. It is forbidden to require the costs of retrieving the information.
Independent publishing and information activities of the authorities
However, in many cases you do not need to ask, since the authority has already published the piece of information somewhere. Where could you look for thus published information?
- Public administration authorities and self-government authorities must, pursuant to law, administer their _web sites_. List of authorities can be found for example on the Portal of Public Administration.
- Each authority must manage its own _publishing space_ where it provides information about news. This space must be accessible online.
- Public administration and self-administration authorities administer number of _information systems.
Special form of providing information are data that must be displayed on the packaging of goods. In relation to civil society it is useful to know about the existence of eco-labels - or instance, label Eco-product, granted by the Ministry of the Environment or Organic farming product, granted by Ministry of Agriculture.
To spread information about the environment in urgent cases, there are special procedures regulated in number of Acts. To timely warn the citizens of the dwelling, local authorities use SMS, regional electronic media broadcasting or other ways.
Since 1st November 2007, grounded on amended legislature, also bills should be published on the Portal of Public Administration and in case of draft legislature prepared by the Ministry of Environment, on the web site of the Ministry. Generally binding legal regulations and ratified international treaties are published in the Collection of Acts and Collection of International Treaties. Regarding resort or regional plans, policies and other relevant documents, publishing practice differs by the institution and is not prescribed by any binding regulation. Therefore, the public only learns about many of strategic documents only as part of assessment of impacts on the environment (SEA).
II. Public participation in decision-making
The Aarhus Convention guarantees the public the right to participate in environmental decision-making. The proceedings themselves are not regulated by the Aarhus Convention. The Convention only requires public participation, which must be above all effective, which does not mean, however, that the public should have the right to decide the matters by itself.
Rights concerning public participation are the following:
- right to participate in the listed proceedings,
- right to be informed about certain aspects of the proceedings, in reasonable way, in time and effectively (including materials that served as grounds for the decision 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.
Public participation in decision-making is divided by the Aarhus Convention as follows:
- participation in decisions on specific activities,
- public participation concerning plans, programs and policies relating to the environment
- public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments.
Specific activities
Decision on specific activities is the most common and most typical area of public participation. In practice, it concerns decisions with potentially distinctive impact on the environment, such as e.g. decision on proposed location of building, on construction and operation of extensive facilities or on approving products for the market
Procedures in the area are influenced by new legal regulations – Administrative Code, Building Act, Act on Protection of Nature and the Landscape.
Who is allowed to participate in the decision on specific activities?
The Czech legal system still recognizes two types of public participation:
Everybody can file opposition in these proceedings:
- country planning procedures or regulatory plan issuance procedures (Act No. 183/2006 Coll., Building Act)
- EIA (Act No. 100/2001 Coll., EIA),
- discussion about emergency plans and rules (Act No. 353/1999 Coll., on Prevention of Major Industrial Accidents),
- proceedings related to permission of individual forms of GMO handling (Act No.78/2004 Coll., on GMO).
Civil society organizations only (not the affected public) can become a participant in these proceedings:
- based on Article 70 of the Act No. 114/1992 Coll., on Protection of Nature and the Landscape, civil society organizations (civil society organization or its organizational unit operating, according to the articles, in the area of protection of nature and the landscape) can participate in the proceedings in the course of which protection of nature and the landscape in the sense of the Act could be affected. On this basis, civil society organizations can participate also in territory management. However, the Act does not directly regulate conditions of participation of civil society organizations (based on Article 70 of the Act No. 114/1992 Coll.) in construction proceedings,
- based on Article 23 paragraph 9 of Act No. 100/2001 Coll., on Environmental Impact Assessment, as amended („locally competent unit of the civil organization society or charitable societies, which operates in the area of protection of public interests, that are protected by special legal regulations”).
- proceedings concerning issuance of integrated permit pursuant to the Act 76/2002 Coll., on Integrated Prevention („civil society organizations, charitable organizations, employees unions or chambers of commerce who operate in the area of promotion and protection of professional interests or public interests pursuant to special legal regulations”).
- administrative proceedings conducted pursuant to the Act No. 254/2001 Coll., on Water („civil society organization which, according to their articles, strives to protect the environment”).
Unorganized public – individuals, municipalities, etc – can become the participants in the proceedings in two cases: their rights or duties are the direct subject of the decision-making (e.g. request for exception for an activity within the protected territory), or their rights or duties could be affected by the decision (e.g. neighbor in country planning and construction proceedings).
Plans, programs, policies
Public participation concerting plans, programs and policies relating to the environment is regulated less precisely, however, the extent of the public right remains the same. Complete regulation is much more flexible while searching for appropriate way of involving the public. The first group of documents are plans and programs relating to the environment. The plans and programs include activities in wide range of industries and on all governmental levels – e.g. plans on utilization of a territory and its development, transport, tourism, power engineering, industry, water management, healthcare and hygiene as well as governmental subsidies or action plans planning.
A typical example of public participation concerning plans and programs is public participation in country planning. The Building Act recognizes two forms of public participation – possibility to file objections and possibility to file opposition. What is the difference?
Right to file opposition applies to general public, i.e. to everyone. It means the possibility to comment on individual documents prepared in various phases of country planning. Objection is basically "competent” opposition, which can be filed by affected owner or so called public deputy. Public deputy is an individual or a legal entity entitled to file objections by a group of persons who claim in the proceedings the same statement. Decision on objections must be part of the issued country plan. The decision can be appealed and in case of no settlement, legal action can be filed with an administrative court. Therefore, it is a formalized process with the opportunity of defense.
Regulations
Reflection proceedings for acts, regulations and decrees is regulated by newly phrased Legislative rules for the government, which, apart from obligatory reflection places (central authorities of public administration and other authorities) also regulate other reflection places (i.e. the public).
Draft regulations are published on the Portal of the Public Administration, which is publicly available.
For all reflection places including the public basic term for reflection of 15 business days (20 for bills) is stipulated. This term can be prolonged by the proposer.
Unfortunately, reflections must fulfill rather grueling formal requirements, they must be concrete and must contain justification. If you require substitution of the text of the draft, you must also provide the proposed new wording.
Reflections of distinctive nature can be filed only by public administration authorities. Only the reflections of distinctive nature, which have not been complied with, must be stated in the presentation report of the draft regulation along with the reasoning why they have not been complied with. The proposer is not obliged to discuss the reflections with the public, however, they may do so on their own initiative.
The public also plays important part in regulatory impact assessment – RIA. This assessment is an obligatory part of all newly presented regulations and it is supposed to provoke discussion about the need and possible means of the regulation before adopting it. The public plays in the process a very important through its professional voice (see: Proposal of introduction procedure of new methodology of integration of public into preparation of governmental documents). Apart from the above stated procedures of publishing, Ministry of the Environment independently created at its web site a section called Draft Legislature, where it provides all draft legal regulations that are related to its field of operation, including original documents and information about state of discussions.
Ministry of the Environment also manages, based on its own internal guideline (No. 3/2001) the list of facultative reflection places, and among them also some expert ecological organizations. The reflection places obtain bills and decree drafts as part of outer reflection proceedings.
III. Access to legal protection
Access to legal protection in environmental matters means the possibility to contest administrative acts or failures of administrative authorities and individuals with an independent and impartial authority. The Aarhus Convention further divides this entitlement to three areas:
- court protection of access to information,
- court protection of public participation,
- general court protection of the environment.
The authorities, with which the decision can be thus contested in the Czech Republic, are only courts. No special authorities (i.e. exclusively environmental tribunals) have been established by law. Therefore, the notion of access to legal protection is substituted by the notion of access to justice.
Basic regulation regulating access to justice is the Code of Administrative Justice.
Who can file legal action?
Entitled to contest a decision and request its assessment (having so called locus standi pursuant to the Code of Administrative Justice) are the following subjects:
– everyone, whose rights have been affected or breached in the prior proceedings,
– supreme public prosecutor is entitled to file legal action if it is in public interest (and the public can file proposal for such proceedings),
– everybody who is explicitly entitled to file legal action by special act or international treaty, which is part of legal order (however, such special act does not exist and the Aarhus Convention is not considered an international treaty in the sense of the provision).
Access to justice concerning right for information (Article 9 paragraph 1 of the Aarhus Convention) is, from the legal frame point of view secured – everyone has the right to refer to the court in the matter. In practice, difficulties caused by long terms and decision on rightfulness of rejection of information, instead of order to provide information, often occur, which prolongs the whole process even more.
Another reason for access to courts is, pursuant to the Aarhus Convention, unlawfulness of decision, other coducts or inactivity that occurred in decision on specific activities (Article 9 paragraph 2 of the Aarhus Convention). The right for examination is mostly exercised by civil society organizations (participants of the prior permission proceedings based on file regulations), which are, however, denied the substantial right to convenient environment, and therefore right to have decision regarding substantial rightness examined, as well. Examination of a decision regarding procedural issues thus complicates the process even more.
Third area – Article 9 paragraph 3 of the Aarhus Convention is kind of general clause creating the public right for court examination of unlawful decisions on the environment – i.e. cases, which are not subject to prior paragraphs. Although this article has not been directly transposed to Czech legal order by a concrete regulation, there are several possibilities of application violation of the environmental rights.
1. administrative proceedings (e.g. appeal of building permit or suggestion to order construction supervision)
2. proceedings except for administrative proceedings (e.g. Article 175 of the Administrative Code)
3. administrative legal actions (e.g. action against building permit)
4. civil legal actions (e.g. neigbours´ legal action pursuant to Article 126 of the Civil Code against bothering with noise)
5. criminal proceedings (e.g. filing complaint against the person damaging the environment)
Because of problematic interpretation and application of recognition of suspensory effect or interim measure regarding legal actions by civil society organizations, requirements of Article 9 paragraph 4 of the Aarhus Convention – i.e. honest, fair and in particular timely hearing of legal action filed by the affected public are in practice rather fulfilled rather insufficiently.
Civil society organizations find it very difficult to procure interim measure for the legal actions or suspensory effect. Courts very often reject proposals for adjourn referring to the concept according to which contested decision can only affect procedural rights of civil society organization. Therefore, harm inherently cannot occur. Moreover, there is no stipulated term for the courts to decide on proposal for recognition of suspensory effect.
Given the above described state, in some cases courts revoke unlawful decisions, e.g. regarding country planning or construction proceeding, based on a legal action filed by a civil society organization only after a few years. Therefore, the construction is already complete. Subsequent order to remove it is not issued (with reference to protection of good faith of the investor).