Alba Iranzo is a lawyer at IIDMA, part of Justice & Environment network
In March 2019, the Spanish Supreme Court ruled in an unprecedented order that court costs should not be a barrier to access to justice for environmental NGOs.
The national court has declared null and void the decisions approving the costs assessment that the International Institute for Law and the Environment (IIDMA) was ordered to bear following a dismissed lawsuit filed in 2017 against the Transitional National Plan (TNP) for large combustion plants.
Last January, IIDMA appealed the Court´s decisions approving the court costs on behalf of the defendant (the Spanish administration) and each of the co-defendants intervening in the TNP procedure, which amounted to 11,260 euros. In its claim, IIDMA asked for the annulment of these decisions as they represented an infringement of its right to legal aid under Spanish Aarhus Law 27/2006, which should cover the court costs imposed on the recipient organization.
From the start of the TNP judicial procedure, IIDMA was granted access to legal aid by the National Legal Aid Commission. This right was recognized through a direct application of Aarhus Law given IIDMA´s status as an environmental NGO that fulfills the requirements established in that Law. In fact, although Spanish Legal Aid Law 1/1996 requires any applicant for legal aid to provide evidence of insufficient means for litigation, any consideration concerning IIDMA´s financial status was disregarded by the Legal Aid Commission, which recognized IIDMA’s right to legal aid in direct application of the Aarhus Law.
Over the last years, Spanish Legal Aid Commissions and national courts have misapplied the rules for granting legal aid to environmental organizations. In certain cases, the right to legal aid was denied on the grounds that the Aarhus Law is subject to prior compliance with Law 1/1996 requirements regarding the financial status of the applicant. In fact, according to article 36 of the Legal Aid Law, the obligation of paying the court costs is conditional on the recipient´s financial status, i.e. an unsuccessful party in receipt of legal aid is required to pay the costs if their financial status improves within three years from the end of the judicial procedure. This provision has been generally applied by many Courts when ruling on unsuccessful cases brought by environmental NGOs in receipt of legal aid.
However, the decision of the Supreme Court in this case represents a huge step towards access to justice by environmental NGOs. Ruling in favor of IIDMA, the Court recognized for the first time that a non-profit environmental organization with recognized legal aid under the Aarhus Law is not required to pay the court costs, otherwise, it would be contrary to the Spanish legal order. The Court recalls that environmental NGOs fulfilling the requirements established in the Aarhus Law, as was the case of IIDMA, are not required to prove insufficient means for litigation and, therefore, the condition established in article 36 of Legal Aid Law does not apply in these cases. As a result, the Court changed its doctrinal approach by rendering null and void the decisions approving the costs assessment and waived IIDMA from paying the 11,260 euros resulting from the TNP case.
Fortunately, the Spanish Court has followed the ACCC recommendations for the effective implementation of articles 9.4 and 9.5 of the Aarhus Convention, as well as the request made by the Meeting of the Parties to that Convention for Spain to take measures to recognize free legal aid to environmental NGOs (Decision VI/8j). IIDMA also recalled this issue during its participation in the Sixth Meeting of the Parties, held in Budva, in September 2017. Almost one year and a half later, one of the main barriers in Spain for NGOs’ effective access to justice in environmental matters has finally been overcome. IIDMA celebrates this victory for the rule of law, and expects the Ministry of Justice, including all Legal Aid Commissions, and national courts to follow and duly apply the Supreme Court´s ruling, allowing environmental NGOs to pursue justice without having to face court costs, regardless of their resources.