Assessing what is the procedure for realization the public’s right to appeal to the courts on environmental issues in Lithuania, whether it is compatible with the international obligations of the Republic of Lithuania according to the Aarhus Convention and whether there are fundamental problems of ensuring human rights in this area, Seimas Ombudsperson Erika Leonaitė came to the conclusion that the legislation of the Republic of Lithuania does not clearly define what interest is considered sufficient for society to have the right to defend violated subjective rights and public interest in court on environmental matters in accordance with the procedure established by law; moreover, examples of court practice have revealed the risks of legal uncertainty due to the application of the Aarhus Convention.
In the opinion of the Seimas Ombudsperson, the limits of application of Article 9, Parts 2 and 3 of the Aarhus Convention are not clearly separated in Lithuania, certain legal norms, which provide for the conditions that must be met by the public concerned seeking to exercise the right to appeal to the courts, raise doubts about their compliance with the provisions of the Convention.
“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, the criterion of sufficient interest specified in Article 9, Part 2 of the Convention, as well as the criteria mentioned in Article 9, Part 3 of the Convention, in the Republic of Lithuania law should be clearly defined while ensuring that these criteria (conditions) do not conflict with the goals set out in the Convention”, – notes the Seimas Ombudsperson in the report.
The Seimas Ombudsperson observes that the examples of court practice presented in the report revealed the risks of legal uncertainty, when in each specific case the courts have to interpret freely and sometimes inconsistently the provisions of the Aarhus Convention and related legal acts: “This can lead to inconsistent practice formulated by the courts in administrative and civil cases.”
The report also notes that according to the Law on Environmental Protection, only the public concerned has the right to apply to the court for the protection of public interest by challenging the material or procedural legality of decisions, actions or inaction in the field of the environment and its protection and the use of natural resources. However, only associations and other public legal entities can defend the public interest in courts that are established in accordance with the procedure set by legal acts and promote environmental protection, while other persons, i.e. one or more natural or legal persons, the right to defend the public interest in the field of environment is granted on the condition that they seek to defend their subjective rights or legal interest in the same matter.
However, in the opinion of the Seimas Ombudsperson, this provision in the Law on Environmental Protection is not formulated precisely enough; moreover, it is not clearly defined what activities are considered to be promotion of environmental protection.
The report highlights that although Lithuania has made changes to the Law on Administrative Proceedings in order to implement the recommendations of the European Commission, it nevertheless provides for the right to apply to an administrative court with a appeal to investigate whether a normative administrative act related to the environment (or part of it) complies with the law or the normative act of the Government of the Republic of Lithuania, only the public concerned as defined in the Law on Environmental Protection can use it. Persons who meet the definition of the term “public concerned” in other environmental laws, such as the Republic of Lithuania Law on Territorial Planning and the Law on Environmental Impact Assessment of Proposed Economic Activities, do not have this right under the Law on Administrative Proceedings.
“It is worth considering whether such legal regulation complies with Lithuania’s obligations under the Convention to create broad opportunities for the public concerned to apply to the courts for all environmental issues of concern to them, to ensure due recognition and support for associations, organizations or groups promoting environmental protection, and for the national legal system to comply with this obligation”, – the Seimas Ombudsperson E. Leonaitė notes in the report.
In addition, the report shows that Lithuania does not adequately ensure that relevant, clear and detailed information is available to the public about the procedures for implementing the right to appeal to the courts on environmental matters, which may not only affect the fact that the public has little knowledge about the limits, opportunities and procedure for the implementation the right to appeal to the courts on environmental issues in Lithuania, but also to create obstacles to effectively use the rights provided for in the Convention.
From the information provided on the website of the Ministry of Environment, it is not clear what is the specific procedure and conditions for the realization of the right to apply to the courts on the basis of Article 9, Paragraph 3 of the Convention in Lithuania. In addition, it does not detail what conditions individuals must meet in order to be able to apply to the court on the basis of Article 9, Paragraph 3 of the Convention, whether certain criteria are established in national law, whether all members of society can exercise the right provided for in this provision, what is considered an interest, what criteria NGOs must meet in order to be recognized as active in the field of environment and to justify to the court their right to defend the public interest in the field of environment.
Leonaitė recommended to the Government of the Republic of Lithuania to ensure that the national law of the Republic of Lithuania guarantees the widest possible opportunities for the public to apply to the courts when challenging the actions, inactions and decisions of various entities in the field of environment, as well as in order to protect the environment as a public interest, and that the criteria (conditions) applied to persons seeking to use the opportunity to appeal to the courts on environmental issues would be clearly defined in legislation, they would not deviate from the objectives provided for in the Convention, and that the public would be properly and constantly informed about these possibilities.
The Seimas Ombudsperson also made recommendations to the Ministry of Environment to take measures to provide detailed, accurate, visually clear information to the public on the website of the Ministry, as well as in other ways, and to constantly review and update information as needed, and to the Ministry of Justice to take measures to ensure that legal acts provide for clear and non-contradictory objectives set forth in the Convention defining sufficient interests, activities promoting environmental protection and other criteria (conditions) applied to the public concerned seeking to use the right to apply to the courts on environmental issues, and the Law on Administrative Proceedings would be improved.
The Seimas Ombudsperson asked the Government and the ministries to examine the provided recommendations and to inform her within thirty days at the latest about the measures planned to achieve the results of the implementation of the submitted recommendations.
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