9th March 2023
By ClientEarth environmental democracy senior lawyer Malgorzata Kwiedacz-Palosz
Although the European Convention on Human Rights (the ECHR) and its Additional Protocols do not make specific reference to environmental rights or the preservation of the environment, the European Court of Human Rights has acknowledged that human rights and a healthy environment are intrinsically linked and is progressively broadening the scope of political and civil rights.
Consequently, the European Convention on Human Rights provides powerful support for the right to access to justice in environmental matters. Its case-law clearly shows that the Court in Strasbourg is aware that access to justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws to protect the environment. This is why, in December last year, five Warsaw residents, together with ClientEarth and the Miasto Jest Nasze association, lodged applications with the European Court of Human Rights alleging the lack of access to justice to challenge air quality plans in Poland.
This article briefly outlines the scope of cases brought under Article 6 § 1 of the ECHR, which guarantees the right to a fair trial, and who can bring such cases before the court. At the same time, other provisions of the Convention may come into play, like Article 8 of the ECHR on the right to private and family life and Article 13 of the Convention providing for the right to an effective remedy. All of these provisions were brought before the Court in Strasbourg in the applications related to the air quality plans in Poland.
Right to a fair trial (Article 6 § 1 of the Convention)
Article 6 § 1 of the Convention embodies the “right to a court”, of which the right to institute proceedings before courts in civil matters, constitutes one aspect. In the environmental sphere, for this provision to be applicable, there must be a dispute over “civil rights” which should be recognised under domestic law. Such dispute must be “genuine and serious”. Further, it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question (see ECHR Guide on Art. 6 for details). The applicability of Article 6 § 1 depends on the state of domestic law, which may afford an individual right to the environment, or may guarantee one of the aspects of such a right, such as the public’s right to information and participation in the decision-making process, where an activity posing a risk to health or the environment is to be authorised. Where such a right exists in domestic law, it is likely to be “civil” for the purposes of Article 6 § 1 of the Convention.
At first sight, it may appear that this provision is inapplicable to proceedings aimed at environmental protection as a public-interest value. However, the Court has adopted a flexible approach to the issue of who holds civil rights in a series of cases brought by environmental protection associations. Such associations qualify for protection under Article 6 § 1 of the Convention if they seek recognition of specific rights and interests of their members or of particular rights to which they have a claim as legal persons, such as the right to take part in decisions regarding the environment (see Collectif national d’information et d’opposition à l’usine Melox – Collectif Stop Melox and Mox v. France (dec.), 2006), or when their action cannot be regarded as an actio popularis (see L’Érablière A.S.B.L. v. Belgium, 2009). In 2021, the Court highlighted that the associations play an important role in defending causes before the domestic authorities or courts, particularly in relation to environmental protection (see Association Burestop 55 and Others v. France, 2021, §§ 53 et seq).
Right to respect for private and family life (Article 8 of the Convention)
Unlike the right to a fair trial, Article 8 of the Convention can only be relied on by individuals. It was confirmed in the decision issued on 7 December 2021 where the ECtHR held that an NGO, in this case, threatened by submersion of towns and displacement of residents following the construction of the Yusufeli Dam and the hydroelectric power plant in the Çoruh River in north-eastern Turkey, cannot rely in its own name on the right to respect for private life and home (see Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey, 2021).
In its well-established case law, the ECtHR has pointed out that while Article 8 of the Convention contains no explicit procedural requirements, the decision-making process must be fair and such to afford due respect for the interests of the individual as safeguarded by Article 8 (see inter alia in Di Sarno and Others v. Italy, 2012, § 107). The Court has pointed out that where a State must determine complex issues of environmental and economic policy, the decision-making process must meet certain requirements: involve appropriate investigations and studies with an eye to prevention and assessment; allow public access to the conclusions of such studies as well as to information enabling them to assess the danger to which they are exposed; and enable the individuals concerned to appeal.
Thus, the individuals concerned must also be able to appeal to the courts against any decision, act, or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.
Right to an effective remedy (Article 13 of the Convention)
Article 13 of the Convention secures the granting of an effective remedy before a national authority to everyone whose Convention rights and freedoms have been violated. This Article has no independent existence as it merely complements the other substantive clauses of the Convention and its Protocols.
The lack of possibility for individuals and NGOs to challenge air quality plans in Poland violates not only EU law and the Aarhus Convention, but also the European Convention on Human Rights, namely Article 6 § 1 (the right to a fair trial), Article 8 (right to respect for private and family life) and Article 13 (the right to an effective remedy). Furthermore, the Court’s case law gives the applicants, both the individuals and NGOs, strong arguments not only for the admissibility of their applications but also for the claims related to the substance – violation of their right of access to the court.
Lastly, the main strength of the Strasbourg system lies in the enforcement of its judgments. The execution of judgment consists mainly of two types of measures: individual and general. The general measures could vary from the reopening of the national proceedings to legislative amendments. For sure, in the Polish air quality plans’ cases, when confronted with not one but four complaints alleging the lack of access to the court, the Polish Government would not be able to argue that these were isolated judgments. Especially as the Court in Strasbourg has already issued judgments in environmental matters whose execution entailed systemic change at national level (see some examples here).