30 November 2018
By Alba Iranzo, IIDMA
On 12 July 2018, the State Supreme Court of Spain rejected a case filed by the Instituto Internacional de Derecho y Medio Ambiente (IIDMA) in 2017 against the Spanish Transitional National Plan (TNP) for large combustion plants. IIDMA had alleged that the TNP should be declared null because the public authorities had failed to conduct a strategic environmental assessment (SEA) prior to its adoption, and not allowed for effective public participation in accordance with the Aarhus Convention provisions during the TNP elaboration and approval.
The Supreme Court rejected all legal grounds brought by IIDMA without providing adequate legal reasoning. The Court's Judgment mainly consists of a literal transcription of the legal arguments brought by the defendant (the State Attorney) and some co-defendants/intervening parties in their statements of defense. In fact, 62% of the reasoning contained in the judgment is copied word-for-word from the arguments used by the State's Attorney, only the remaining arguments belong to the Court itself. The act of simply copying arguments does not allow the public to understand the intellectual process that led to the Court’s decision.
This lack of an adequate reasoning in a judicial decision represents a clear violation of the fundamental right to an effective remedy recognized in article 24 (1) of the Spanish Constitution. Spanish Civil Procedure Law 1/2000 establishes a clear obligation for Judges and Magistrates to state reasons in their judicial decisions. The relevant case-law from the Constitutional Court makes it clear that the obligation to state reasons entails a duty to reflect the intellectual and mental process followed by the Court when reaching its decision. In other words, the content of a judgment must allow the parties and society as a whole to understand the legal criteria which justify the ruling. By merely reproducing excerpts of the defendant and co-defendants statements of defence, this intellectual exercise by the Court was absent in the TNP case.
Given that constitutional appeals are subsidiary actions in the Spanish legal system, IIDMA had to first lodge a nullity action in order to ask for the annulment of the Court´s Judgment. Such an action is regarded as an extraordinary remedy with significantly limited possibilities of success, as it has to be filed before the same judicial body that issues the contested decision. The chances of a Court amending its own decision are generally very low. As expected, the Supreme Court declared the nullity action inadmissible and rejected the existence of a violation of article 24.1 of the Spanish Constitution by claiming that the Judgment provided sufficient and adequate reasoning.
In view of these facts, IIDMA has recently filed an appeal before the Spanish Constitutional Court challenging both the State Supreme Court´s Judgment of 12 July and its decision rejecting the nullity action. Both decisions fail to comply with the right to an effective remedy, not only from the perspective of the constitutional right to adequate reasons but also concerning IIDMA´s right of appeal.
Now, it is in the hands of the Spanish Constitutional Court to confirm the scope and meaning of the right to an effective remedy, especially as regards the adequacy of the reasoning of judicial decisions. There is no doubt that its ruling, in this case, will have a strong impact on access to justice, not only concerning environmental litigation but in any other legal matter.
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.