This report represents a step towards meeting the goal of the Aarhus Convention Access to Justice Task Force to develop a set of good practices and analyses on three priority issues:
· The loser pays principle
Article 9(4) of the Aarhus Convention requires that procedures for obtaining access to justice must not be prohibitively expensive. In some legal systems, the loser of an administrative or judicial action must pay all, or a portion of, the winner's litigation costs. These costs may include court fees, attorney fees, witness fees, and various other types of expenses. The loser pays principle may lead to an inability to control or even predict exposure to risk, and thus unreasonably deter public interest environmental litigation. Good practices in this category are those that help potential public interest claimants manage their risk and prevent environmental legal procedures from becoming prohibitively expensive.
· Legal aid and other methods of funding for public interest lawyers and NGOs
One way in which many countries address the requirement that procedures not be prohibitively expensive is to provide legal aid, or some other method of funding. Good practices in this category are those that enable meritorious environmental disputes to proceed when potential claimants lack the funds to pursue claims on their own.
· Criteria for injunctions
Article 9(4) of the Aarhus Convention requires that access to justice procedures provide adequate and effective remedies, including injunctive relief. To be effective, procedures must provide a means for actually stopping an environmentally harmful activity or illegal administrative decision. Without the ability to obtain injunctive relief, serious and irreversible damage may occur before the legal dispute is decided. Good practices in this category are those that facilitate injunctive relief leading to an effective level of environmental protection.
This report was commissioned for the 4th Aarhus Convention Meeting of the Parties
2011. , 24 p.