On Thursday, the Seimas Ombudsperson Erika Leonaitė, together with her senior advisor and representatives of the Human Rights Division, participated in a meeting with the President of the Supreme Administrative Court of Lithuania and judges, who were presented with conducted research on Aarhus Convention and the right to receive information about the environment, to participate in decision-making as well as the right to apply to courts on environmental matters established therein. Moreover, the recommendations addressed to the responsible state institutions and the position of these institutions regarding the implementation of the provided recommendations were presented.
According to the provisions of the Aarhus Convention, Lithuania is obliged to ensure that the requirements for persons seeking to use the right to apply to the courts on environmental matters are acceptable under the Aarhus Convention, i.e. that they are not essentially restricting the right to apply to the courts, but on the contrary, wide opportunities to exercise this right are ensured.
In her presentation of the report, the Seimas Ombudsperson Erika Leonaitė emphasized that the right to approach the courts on environmental issues is an important part of environmental democracy. However, in Lithuania, it is not properly ensured for the public to have access to relevant, clear and detailed information about the procedures for the implementation of the right to appeal to the courts on environmental issues, which may not only affect the fact that the public has little knowledge about the implementation limits, opportunities and order of the right to appeal to the courts on environmental issues, but also create obstacles to effectively use the rights provided for in the Aarhus Convention. Participants of the meeting also discussed the recommendation presented in the report to improve legal regulation, in order to clearly define in which cases organizations should be considered as public concerned able to apply to courts on environmental issues.
Taking into account the position of the Ministry of Justice that changes in legal regulation are not necessary, as the implementation of the obligations assumed under the Aarhus Convention and legal clarity are ensured by the courts, in their practice consistently developing definitions of the public concerned enshrined in legal acts as well as related concepts and, based on the established factual circumstances, establishing whether in a specific case the public is considered to be sufficiently concerned, the Seimas Ombudsperson asked the judges of the Supreme Administrative Court of Lithuania whether, in the course of developing the dialogue with the Ministry of Justice, the improvement of legal regulation should be sought after all.
In her investigation, the Seimas Ombudsperson has also observed that the public concerned has the right to defend violated subjective rights and public interest on environmental issues in court in accordance with the procedure established by law, as well as to request an investigation as to whether a normative administrative act related to the environment (or part of it) complies with the law or the Government’s normative legal act, however, the legal acts of the Republic of Lithuania do not clearly define what interest is considered sufficient and what is considered as environmental promotion activity, and the limits of application of paragraphs 2 and 3 of Article 9 of the Aarhus Convention are not clearly distinguished. Therefore, in order to ensure that the opportunities of the public concerned, and especially of public legal entities operating in the field of the environment, to apply to the courts on environmental issues are not unreasonably restricted, paragraph 2 of the Article 9 of the Aarhus Convention specifying the criterion of sufficient concern and violation of any right, as well as the criteria mentioned in paragraph 3 of the Article 9 of the Aarhus Convention should be clearly defined in the Lithuanian law, while ensuring that these criteria (conditions) do not conflict with the goals envisaged in the Aarhus Convention.
When the courts decide whether a legal entity should be considered a public concerned in the context of the case under consideration, the totality of the circumstances and evidence is evaluated. However, the examples of court practice presented in the report revealed that the provisions of the Aarhus Convention and related legal acts of the Republic of Lithuania are not always interpreted unanimously and applicants often manage to defend their right to apply to court only in a higher instance court. At the same time, it was noted that court practice is gradually changing and being formulated in the direction of securing the rights of the public concerned and the proper implementation of the provisions of the Aarhus Convention. Previously, in the cases examined by the Supreme Administrative Court of Lithuania, often there were cases when legal entities seeking to protect the public interest in the field of the environment did not justify their interest, i.e. they did not indicate specific circumstances confirming that their rights or interests protected by law were violated, and as a result they were not considered as public concerned with the right to apply to the courts on environmental issues. However, in recent years, public legal entities (except for legal entities established by the state or municipality or their institutions), which are set up in accordance with the procedure established by legal acts and promote environmental protection, manage to realize the right to apply to court for the protection of public interest in the field of the environment, regardless of their personal interest in it on the same matter.
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