Task Force on Access to JusticeEighth meeting

Geneva, 15-17 June 2015

Scope of reviewEECCA countries (selected issues)

Dmytro Skrylnikov

Bureau of Environmental Investigation

Analytical studies

• Access to Justice in Environmental Matters: Available Remedies, Timeliness and Costs in the EECCA countries (2012)

• Study on standing for individuals, groups and non-governmental organizations before courts in environmental cases in Armenia, Azerbaijan, Belarus, Kazakhstan, Republic of Moldova and Tajikistan. (2014)

www.unece.org/env/pp/tfaj/analytical_studies.html

• individuals and ENGOs usually have a right to challenge the substantive and procedural legality of the decisions as well as acts or omissions in a form of administrative appeal and in the court

• administrative review (independent and impartial administrative bodies, administrative and/or judicial review)

• substantive vs. procedural legality

Main types of court proceedings when the case related to the environment is filed by an individual or an ENGO:

• civil court proceedings in the court of general jurisdiction for civil cases, and

• administrative court proceedings for appeals against decisions, actions or omissions of public authorities and officials

- in the administrative court - in the court of general jurisdiction • in some countries, cases between legal entities (e.g.

ENGO and public authority or private legal entity) shall be filed to economic (commercial) courts

Article 9.2Decision-making procedures on specific activities, in relation to Art.6, para 1 (a) and (c), paras 10, 11, and Annex I, para 22, of the AC:

• the decision-making process on specific activities is divided into several stages (decision on planning, decision on allocation of land, permission for construction works, licenses, permits for emissions / discharges, permit for use of natural resources, conclusion of state ecological expertise, etc.)

• not clear what is the decision on whether to permit proposed activities / final decision;

• decision-making is vested in various governmental bodies (the President, Parliament , Government, ministries and agencies, local governments / municipalities);

• in some cases public may not have opportunity to appeal / challenge decisions that are made by the President, Parliament or the Government both in administrative and judicial review procedures (e.g. in Ukraine the decision on placement and construction of a nuclear facility shall be adopted by the Parliament in the form of a law)

Article 9.3• challenging acts and omissions by private persons and

public authorities which contravene provisions of its national law relating to the environment

-administrative procedures-judicial procedures• standing• conflicts between the relevant environmental legislation

and civil procedural legislation (economic procedural or administrative procedural legislation)

Cassation and (?) reformatory rights

Scope of the court review:• state the legality of the decision or some of its

provisions as well as the legality of the acts or omissions

• cancel the decision or some of its provisions• put an obligation on the defendant to take certain

actions• put an obligation on the defendant to refrain from

taking certain actions• others

Case on the failure to adopt the sub-legislation under the Law of Ukraine "On Fauna"

• Kiev ecological & cultural center and Ecopravo-Kyiv vs. Ministry of environment and natural resources and Cabinet of Ministers of Ukraine

• Court decisions of 04.10.2010 , 07.12.2010 (appellation), 13.11.2012 (cassation) recognised the inaction illegal and obliged the Ministry to take the actions in order to adopt regulations required for the implementation of the Law of Ukraine "On Fauna"

Case on Zinc Phosphide Pesticide ban in Ukraine

• Kiev ecological & cultural center and Ecopravo-Kyiv vs. Ministry of environment and natural resources

• Court decisions of 12.06.2013 , 24.09.2013 (appellation), 17.04.2014 (cassation) to oblige the Ministry to take the actions in order to cancel the state registration of the pesticide and exclude it from the State Register