5th July 2018
What seems obvious to the layperson can be the outcome of a long legal dispute for the legal practitioner. This was proven by a seemingly insignificant court case recently in Hungary where the Hungarian partner of the Access to justice for a greener Europe project, EMLA, scored a significant victory.
The court decided that citizens who are not informed of the construction of a planned project in their neighborhood cannot be denied access to courts because they missed the deadline to challenge that project.
The residents of Kaposmérő, a small settlement in South Western Hungary, noticed one day that heavy earthwork machinery was arriving at the edge of their village.
Soon they discovered that a new waste management site was being set up on the outskirts of the village. The site would manage demolition waste, grinding bricks and concrete. While such an installation has clear environmental benefits in waste management, its placement should be done with extra care, preferably far from any inhabited area because of the high level of disturbance it may cause. Such disturbance would manifest in emission of particulate matters from the ground waste, noise pollution generated by the machines used at the site and by increased heavy vehicle traffic going to and from the site.
The residents also discovered that the facility possessed the necessary permits issued by the competent authority, although they had not been informed about anything to do with the site before they saw the machines arrive.
As soon as they recognised the gravity of the situation, and following advice from their EMLA lawyers, the residents requested a copy of the site’s permit. As soon as they received that permit, they filed an appeal within 15 days, the statutory time limit for any administrative legal remedy in Hungary.
The response of the National Environmental Agency, the appellate forum in such a case, was surprising: the residents’ appeal was allegedly submitted too late. The Agency argued that the time limit available for an appeal should be counted from the original release of the permit, despite the fact that it was neither posted to any citizen, nor published online, or in any other way made publicly available.
The Agency claimed the appealing parties should have asked for an extraordinary extension of the appeal period for which there was an 8-day-deadline available. Since they did not, their appeal was time-barred and therefore rejected as inadmissible without any substantive investigation of the details.
The residents’ outcry was understandable, so filing a lawsuit was the next logical step. In its judgment, delivered a week ago in a process without any hearing, the court confirmed the validity of the citizens’ arguments and ordered the Agency to decide on the merits of the case, now taking the substantive complaints of the citizens into account.
The court confirmed what seems obvious: the time available for an appeal cannot start before one is informed in an appropriate manner about the very decision one wants to appeal. No one can be deprived of their right to a legal remedy if they had no reasonable way to know about an administrative act. If a competent authority’s decision was never made public, in particular to those with a legal interest in the case, and therefore with a right to access the courts, then the right of legal remedy becomes ineffective.
As much as these findings are obvious for a layperson, they were not so clear in the legal dispute. But thanks to this case, they are now not only self-evident but also confirmed by the judiciary. All that was needed was a good and open-minded judgment.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.