Access to Justice

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					          Some credentials
• Professor, 28 years, University of Oregon
• Founder, 17 years, Environmental Law
  Alliance Worldwide:
  (300 “public- interest” environmental
  lawyers in 60 countries)
• Active member, IUCN Commission on
  Environmental Law
• Citizen negotiator, 9 years,
  European ECO Forum (since 1997)
 The risks of allowing
real access to justice?
Experts on the role of money
    in access to justice
Money makes the case go
 the remedy sound, jus-tice
 abound . . . .
A ruble, a forint, a Euro or a

 that clinking clanking sound,
 can make the case go round.
         (from Cabaret)
          The Almaty NGO
         Appeal for Justice
“Individuals and NGOs are
  often effectively barred from
  seeking justice . . .

“In such situations, the
  Aarhus Convention may be
  seen as consisting of two
  pillars and a broken stick.”
     Who gets access to justice?
          (USA example)
• Private environmental lawyers in USA:
     – 10-20,0001

• Funded citizens’ environmental lawyers in
     – ~5002
• Government environmental lawyers in USA:
     – ~1,000
1   Martindale-Hubbell listings
2   Data compiled by J. Bonine
      Funded public-interest
environmental litigators for citizens
  in EU, E. Europe, Central Asia
 (1) Ecological Association Demeter in Bulgaria
 (5) Environmental Law Service in the Czech Republic
 (1) UfU in Germany
 (2) Environmental Management and Law Ass’n, Hungary
 (2) Stichting Natur en Milieu, Netherlands
 (3) Via Iuris (formerly CEPA), Slovakia
 (2) Ecojuris, Russia
 (1) Lawyers for Rights and the Environment, Russia
 (4) Environment-People-Law (EPL) in Ukraine
 (6) WWF, Greenpeace, Friends of Earth, R.S.P.B., UK
 ~27 lawyers, 500 million people
 Why so few
    Potential Barriers to Justice
• Lack of knowledge by citizens, officials, lawyers, judges
• Difficulty to find and pay the correct lawyer
• In some cases, paying science experts
• Paying high court filing fees
• Lack of legal standing
• Lack of the injunction remedy (strong court orders)
• Paying high bonds for security, required for injunctions
• Corrupt judges (inability to pay them while other side
• Retaliatory actions (financial, threats to life & liberty)
• Paying high lawyers’ costs for appeals
• Paying high lawyer fees for other side if one loses
If you can’t file a lawsuit, issues
of training, standing, remedies, &
corruption don’t even exist.

      Money is
    the problem
     Barriers Vary by Region
EU, Eastern Europe*, Central Asia
• Paying the lawyer         • EU, Eastern, Central Asia
• Paying a court’s filing   • Eastern, Central Asia
  fee                         (in some courts)
• Paying a bond for         • EU countries, Eastern
• Retaliatory actions       • Financial: EU, Eastern
  (financial, threats to      Threats to liberty, life:
  liberty)                    Eastern, Central Asia
• Paying appeal lawyers     • EU, Eastern, Central Asia
• Paying other side’s       • Many EU countries
  lawyer fees
  Good Practices (summary)
• Government funds NGO lawyers
  – General funding for NGO lawsuits
  – Legal Aid funding, case-by-case basis
  – Government pays NGO lawyer fees when
    court rules that Government violated law
• Court’s filing fees are lowered
• Injunction bonds are not required
• No requirement to pay opposing lawyer
  fees if NGO loses
       Good Practices (details)
• Government pays the lawyer (or NGO)
  – General NGO lawsuit funding
     • REC/donor funding, Romania (and others previously)
     • Court awards (India)
  – Legal Aid
     • UK – for some cases
     • Spain – for some cases
  – Government pays NGO lawyer fees upon victory
     • U.S. FOIA (1974)
     • U.S. Equal Access to Justice Act (1980)
     • Kazakhstan: new proposal to reduce costs (10
       percent of court fees allocated to social organizations
       in successful cases)
    Good Practices (details)
• Court’s filing fees are lowered
  – Spain: no filing fees for NGOs (Mexico
  – Hungary: no filing fees for NGOs.
    Good Practices (details)
• Injunction bonds are not required or
  just symbolic in public-interest cases
  – USA
  – Australia’s Land & Envir. Court of NSW
    Good Practices (details)
• No requirement to pay opposing lawyers’
  fees in Aarhus/enviro cases if you lose
  – Spain: in unsuccessful cases against
    government (also Mexico)
  – Ukraine: actual practice (but law allows such
    costs orders)
  – Hungary: limitation on opposing fees to a
    published schedule.
An idealistic view
      (the NGO view)

 Access to justice is equal
for those who can pay for it
                             Judges’ View
                      EECCA Judges
                   Lviv Statement (2003):

•      Acknowledge . . . the important role played
       by citizens and their organisations in
       bringing matters before the courts . . . .

•      Further identify the need for financial and
       other support for … lawyers to assist
       citizens and their organisations to apply to
       the courts to defend environmental rights.
Source: 15 Chief Justices and senior judges from Supreme and Constitutional Courts from 11
       countries of Central/Eastern Europe, Caucasus and Central Asia (the EECCA Region)
    Questions for Task Force
          to consider
• Can the Task Force help identify
  financial barriers?
  – How?
• Can the T.F. help catalog good
  – How?
• Can the T.F. make suggestions to W.G.
  of the Parties?
  – Which ones?
• Proposal: Web-based questionnaire