Remo Savoia
offered in practice by administrative review is well devel-oped. In Denmark, for instance, there is an obligation on each public authority that makes a legally binding decision (whether concerning the environment or any other topic) against a complainant to explain to the complainant how he or she can appeal against such a decision. This is con-sistent with article 9 of the Aarhus Convention.
Special environmental tribunals
One solution to the general difficulty experienced by judges and other legal professionals in dealing with the complexity and peculiarities of environmental cases is to establish specialised tribunals with jurisdiction and expert-ise over environmental matters. On the national level, such tribunals have been established in Australia, New Zealand and, in the UNECE region, most recently in Sweden. On the international level, several initiatives are under way to establish an international environmental tribunal.
The ombudsman
The institution of an ombudsman72as an independent and impartial review body for violations of administrative law against citizens was developed in the Scandinavian countries.73 Currently,74 this institution, or a similar one, functions in many Western European75and EECCA coun-tries,76as well as on the supranational level (see examples of Denmark and Hungary, and the Friends of the Earth case in appendix B). In Croatia, Hungary, Poland and Slovenia, as well as many Western European countries, it is specified that citizens have the possibility to appeal to the ombudsman on environmental issues.
The ombudsman deals with complaints from the pub-lic regarding decisions, actions or omissions by the pubpub-lic administration. The ombudsman is elected by parliament or appointed by the head of state or government after con-sultation with parliament. The role of the ombudsman is to protect the people against violations of rights, abuse of powers, error, negligence, unfair decisions and maladmin-istration, in order to improve the public administration and make the government’s actions more open, and the gov-ernment and its officials more accountable to the public.
The office of the ombudsman may be enshrined in a coun-try’s constitution and supported by legislation, or created by a separate act of the legislature.
The ombudsman usually has the power to undertake an objective investigation into complaints from the public about the administration of government. The ombudsman may also have powers to initiate an investigation even if a complaint has not been received. To protect people’s rights, the ombudsman has various tools:
• investigate whether the administration of government is being performed contrary to law or unfairly;
• if an objective investigation uncovers improper admin-istration, make recommendations to eliminate the improper administrative conduct; and
• report on his activities in specific cases to the govern-ment and the complainant, and, if the recommenda-tions made in a specific case have not been accepted by the government, to the legislature.
In most countries, the ombudsman also submits an annual report on his or her work to the legislature and to the general public.
The ombudsman usually does not have the power to make decisions that are legally binding for the govern-ment, in contrast with judicial decisions. According to most national legislation, approaching the ombudsman with a complaint does not exclude a later judicial procedure. The ombudsman has moral power and makes recommenda-tions for measures to be taken, as supported by a thorough investigation of the complaint. A vital characteristic of the ombudsman’s office is its independence from the execu-tive/administrative branch of government. Another advan-tage is that the ombudsman can usually take rather quick or even immediate action, and examinations initiated by this office are free of charge. For the ombudsman’s investi-gations and recommendations to be credible to both the public and the government, the ombudsman maintains and protects the impartiality and integrity of his office.
The Aarhus Convention does not explicitly mention the institution of ombudsman. The phrase, “another independ-ent and impartial body established by law,” used in article 9(1) may possibly imply such an institution. Strictly speak-ing, this would depend on its characteristics, but the ombudsman typically does not grant a legal right to a review procedure, supply binding decisions, or provide injunctive relief.77 The four Scandinavian countries pre-sented a common interpretative statement during the negotiations relating to article 9 of the Aarhus Convention.
According to the statement, the institution of the ombuds-man may correspond with the requirements of the Convention in practical, but not in legal terms. Thus, it may provide a practicalmeans for access to justice in specific cases that is often cheaper, quicker and just as effective as proper judicial proceedings.
An example of how the institution of ombudsman can work is provided in the case of Friends of the Earth (see appendix B). In the first instance, the NGO appealed to the Secretary-General of the Commission about the refusal to disclose information, as required by the Code of Conduct concerning public access to Commission and Council doc-uments attached to Commission Decision 94/90/EC. The Secretary-General upheld the Commission’s refusal.
Friends of the Earth then appealed to the European Ombudsman,78who ruled that the Commission wrongfully refused to provide the requested information. It also argued that the Commission was acting inconsistently with
the Aarhus Convention. This case is a good example of how a decision resulting from an administrative appeal can be reversed in a fast and effective manner using instru-ments other than a “traditional” judicial procedure.
Arbitration and mediation
“Alternative dispute resolution”79is an activity that cov-ers a variety of out-of-court bodies, which provide alterna-tives to litigation through the courts. While this is not appropriate for many matters under the Aarhus Convention, it may be relevant especially where environ-mental organisations involved in public participation pro-ceedings have grounds for complaint and seek to negotiate a settlement. In most cases, it is necessary to turn to such alternatives because the traditional judiciary is often too expensive and time consuming. In addition, by accepting a decision through arbitration or mediation, public authori-ties do not have to face the stigma of an adverse ruling.
Alternative dispute resolution procedures may include, but are not confined to arbitration, early neutral evaluation, expert determination, mediation and conciliation.
Accordingly, the mechanisms for resolving disputes may vary from binding decisions to recommendations or agree-ments between the parties. The organisation and manage-ment of these procedures may also vary: they may be pub-licly or privately organised and take the form of an ombudsman scheme, consumer complaint board, private mediator, trade association or others. Which of the above procedures is the most appropriate will depend on the nature of the dispute to be resolved.
Procedures can be distinguished on the basis of whether a neutral third party proposes or makes a decision
(arbitration) or whether the third party seeks to bring the parties together and assist them in finding an agreement by common consent (mediation). Arbitration may be binding or non-binding (advisory), court-ordered or voluntary.
Binding arbitration involves having a neutral person (or a panel of neutral persons) decide a dispute, after hearing each party’s presentation of evidence and argument. The parties agree in advance that the decision (award) of the third party is to be final. Generally, there are no appeals from an arbitrators award, though parties may seek judicial relief from binding arbitration under certain circumstances.
These include if the arbitrator exceeds the authority con-ferred under the parties’ agreement to arbitrate, denies a party a fair hearing, or demonstrates bias or prejudice.
Parties may also sometimes seek judicial relief if there is an obvious mistake, such as a calculation error, that appears on the face of an award.
The Permanent Court of Arbitration has adopted optional rules for arbitrating disputes relating to the envi-ronment and/or natural resources,80 supplemented by environmental conciliation rules adopted in 2002. These rules are potentially available for application in a wide range of disputes, including those among private parties or between private and public parties.
Mediation is another process for resolving disputes with the aid of a neutral entity. The third party’s role involves assisting parties, privately and collectively, to identify the issues in dispute and to develop proposals to resolve the disputes. Unlike arbitration, the mediator is not empowered to make decisions. Accordingly, the mediator may meet privately and hold confidential and separate dis-cussions with the parties to a dispute.
C H A P T E R 4 : A D M I N I S T R A T I V E , J U D I C I A L A N D O T H E R M E A N S O F A C C E S S T O J U S T I C E
Article 9(4) of the Aarhus Convention requires fair pro-cedures for access to justice. Fair propro-cedures, in turn, require impartiality in the access to justice process.81The process should also be free from prejudice, favouritism or self-interest.82The independence of the judiciary is one of the main preconditions in ensuring fairness in the access to justice process, and its absence precludes the normal exercise of the right of access to justice. A lack of judicial independence has been found, especially in countries where the judiciary has been a voice of government poli-cy and politics.