Transcript The status and procedural rights of NGOs and individuals in Polish

AN OVERVIEW OF THE STATUS AND PROCEDURAL RIGHTS
OF NGOS AND INDIVIDUALS IN POLISH
ENVIRONMENTAL CASES
Bolesław Matuszewski
Attorney-at-law
Wrocław, 16 September 2016
3 pillars of individual rights in environmental cases:
1. The right to information
2. The right to participate in decision-making
3. Access to justice in environmental cases
The right to participate in decision making
• Determine which proceeding you intend to participate in:
• Requiring public participation
• Not requiring public participation (yet still concerning the environment)
Determine whether you are a party to proceedings:
• particularly important for individuals
• different criteria used for different proceedings
• Particularly visible in building permit/EIA cases
Example: The Północ (North) Power Plant Case
• Building permit/EIA case
• Requires public participation
• Determining the legal status of individuals living in the vicinity
The most important factor: relationship to the individual’s legal
interest
• Legal interest different from factual interest
• Must relate to, but not necessarily violate the legal interest
According to jurisprudence, an interest is legal, not factual, when
it:
• is direct
• is concrete
• is objectively verifiable
• has a factual basis which justifies the application of a provision of
substantive law
Party status, once determined, leads to procedural rights:
• In addition to those enjoyed by the public
• Specified mainly in the Polish act on administrative procedure
Why in addition to those enjoyed by the public?
RIGHTS IN DECISION MAKING
PROCEEDINGS REQUIRING
PUBLIC PARTICIPATION
• RIGHTS OF THE PUBLIC
• RIGHTS OF PARTIES
PROCEEDINGS NOT
REQUIRING PUBLIC
PARTICIPATION
• RIGHTS OF PARTIES
What is the difference in these rights in Polish law:
• Access to documents
• Evidentiary rights
• Right to appeal
NGO’s rights in proceedings:
• There is also a dualism
• Much easier for Environmental NGO’s to participate in proceedings
requiring public participation
• The right to appeal is specially regulated
Criteria for NGO participation:
• Substantive
• Procedural
• Temporal
These criteria have been used in:
• Cases requiring public participation
• EIA (Opole)
• Building permit/EIA (Północ)
• Cases not requiring public participation, but dealing with the
environment:
• GHG (art. 10c) cases
• Local fee cases
Problems with bringing appeals by individuals and NGOs:
• Time limits
• Judicial control of the fulfilment of criteria
Rights referring to plans and programs dealing with the
environment:
• Essentially the same rights as in the case of decisions
• However, it is often practically impossible to challenge plans and
programs
• Restrictive interpretation of the „legal interest” and its violation
THANK YOU