Findings
The right to a favourable environment in the Czech Republic: a summary of the non-event and the first steps forward
Updated: April 2018 by Hana Müllerová
In the Czech Constitution, the right to a favourable environment has been recognized since 1993 in Article 35 of the constitutional Charter of Fundamental Rights and Freedoms. Although explicitly recognized, the right to a favourable environment has been rarely litigated in courts. The Justices of the Constitutional Court have heard less than 20 constitutional complaints claiming directly the right to a favourable environment up to now. There were three main legislative and interpretative factors that made the right to environment practically unenforceable until 2014-2015.
Firstly, under the Czech Constitution, the right to environment is not self-executing (i.e. not directly applicable) but an implementing law stating how to claim the right has never been adopted. In these circumstances, litigating the right is still possible but it is very exacting for the claimants who have only the constitutional provision itself and the general mass of the entire environmental legislation to rely on.
Secondly, the judicial interpretation of who might claim the right to a favourable environment was excluding legal entities, i. e. all environmental NGOs, until 2014. The Constitutional Court argued in 1998 that legal persons as artificial entities could not be affected by a poor environmental quality and that is why they could not claim the substantive right to a favourable environment. In environmental proceedings they might only have procedural rights. This way of interpretation was followed by other courts and consequently, all complaints filed by environmental NGOs claiming the substantive right to environment were rejected.
Thirdly, in the Czech legislation, the status of a participant in administrative or judicial proceedings was enshrined unequally as regards individuals and legal entities, especially the environmental NGOs. Environmental NGOs were granted wide access in various types of proceedings concerning the environment especially thanks to the Nature and Landscape Protection Act enabling them to participate in any administrative proceedings relating to the nature protection. All other persons including individuals may only enter proceedings as participants if their rights could be directly affected by the outcome of these proceedings. The interpretation of these provisions was always rather restrictive and limited their participation in fact to cases, when their rights to real estate property within the area concerned in the proceedings were affected. In Czech courts it is not possible to claim exclusively an infringement of environmental norms without challenging an infringement of one’s own rights because the Czech Republic has no public interest litigation (actio popularis).
Only recently there have been some signs showing that the situation is changing, in both judicial interpretation and legislation. The Czech Supreme Administrative Court has been leaning towards a more progressive approach, having recognized the right to a favourable environment to environmental NGOs a few times since 2010. However, these cases were specific with their relation to the environmental impact assessment provisions and the argumentation was based on a direct application of the European Union EIA directive.
The real interpretational shift came in 2014 with the judgment of the Czech Constitutional Court of 30 May 2014 (No. I. ÚS 59/14). In this ground-breaking decision, the Constitutional Justices were commenting the role of environmental NGOs in a democratic society as highly positive. Regarding the right to environment, the decision emphasized that it would not be correct to deny the environmental NGOs the chance to defend the environment. It stressed that these NGOs are created by individuals to protect their own right to a favourable environment, and that the previous interpretation restricting the personal scope of this right to only individuals seemed to be "outdated". This decision is expected to play a crucial role in an interpretative shift. Hopefully, it can at the same time point to a desired more significant role of Czech courts in the protection of the environment. The main contribution of the judgement is that it removes the major barrier that blocked the environmental NGOs their way to courts in order to invoke the right to environment. Now, the courts will hopefully get to the merits of cases and will shed some light on the essence and content of the constitutional right to environment.
In the Czech Constitution, the right to a favourable environment has been recognized since 1993 in Article 35 of the constitutional Charter of Fundamental Rights and Freedoms. Although explicitly recognized, the right to a favourable environment has been rarely litigated in courts. The Justices of the Constitutional Court have heard less than 20 constitutional complaints claiming directly the right to a favourable environment up to now. There were three main legislative and interpretative factors that made the right to environment practically unenforceable until 2014-2015.
Firstly, under the Czech Constitution, the right to environment is not self-executing (i.e. not directly applicable) but an implementing law stating how to claim the right has never been adopted. In these circumstances, litigating the right is still possible but it is very exacting for the claimants who have only the constitutional provision itself and the general mass of the entire environmental legislation to rely on.
Secondly, the judicial interpretation of who might claim the right to a favourable environment was excluding legal entities, i. e. all environmental NGOs, until 2014. The Constitutional Court argued in 1998 that legal persons as artificial entities could not be affected by a poor environmental quality and that is why they could not claim the substantive right to a favourable environment. In environmental proceedings they might only have procedural rights. This way of interpretation was followed by other courts and consequently, all complaints filed by environmental NGOs claiming the substantive right to environment were rejected.
Thirdly, in the Czech legislation, the status of a participant in administrative or judicial proceedings was enshrined unequally as regards individuals and legal entities, especially the environmental NGOs. Environmental NGOs were granted wide access in various types of proceedings concerning the environment especially thanks to the Nature and Landscape Protection Act enabling them to participate in any administrative proceedings relating to the nature protection. All other persons including individuals may only enter proceedings as participants if their rights could be directly affected by the outcome of these proceedings. The interpretation of these provisions was always rather restrictive and limited their participation in fact to cases, when their rights to real estate property within the area concerned in the proceedings were affected. In Czech courts it is not possible to claim exclusively an infringement of environmental norms without challenging an infringement of one’s own rights because the Czech Republic has no public interest litigation (actio popularis).
Only recently there have been some signs showing that the situation is changing, in both judicial interpretation and legislation. The Czech Supreme Administrative Court has been leaning towards a more progressive approach, having recognized the right to a favourable environment to environmental NGOs a few times since 2010. However, these cases were specific with their relation to the environmental impact assessment provisions and the argumentation was based on a direct application of the European Union EIA directive.
The real interpretational shift came in 2014 with the judgment of the Czech Constitutional Court of 30 May 2014 (No. I. ÚS 59/14). In this ground-breaking decision, the Constitutional Justices were commenting the role of environmental NGOs in a democratic society as highly positive. Regarding the right to environment, the decision emphasized that it would not be correct to deny the environmental NGOs the chance to defend the environment. It stressed that these NGOs are created by individuals to protect their own right to a favourable environment, and that the previous interpretation restricting the personal scope of this right to only individuals seemed to be "outdated". This decision is expected to play a crucial role in an interpretative shift. Hopefully, it can at the same time point to a desired more significant role of Czech courts in the protection of the environment. The main contribution of the judgement is that it removes the major barrier that blocked the environmental NGOs their way to courts in order to invoke the right to environment. Now, the courts will hopefully get to the merits of cases and will shed some light on the essence and content of the constitutional right to environment.
In October 2015, the Czech Constitutional Court made another step towards the environmental justice in the Czech Republic. In its decision No. IV. ÚS 3572/14 of 13 October 2015, it confirmed that an environmental NGO may claim the right to a favourable environment, which had been possible only for individuals before. With this judgement, the Constitutional Court strengthened the new approach to this human right launched in 2014 by the I. ÚS 59/14 judgement. In the case, a local environmental NGO challenged a territorial plan in administrative courts but was rejected even by the Czech Supreme Administrative Court. It then referred to the Constitutional Court asserting that its rights to a fair trial and to a favourable environment were breached. The Constitutional Court satisfied the complainant. It confirmed and further developed its interpretation established by the decision of 30 May 2014. The Justices stated that the interpretation of the right to environment “had undergone certain development”. This hopefully indicates that the original restrictive interpretation of the right as belonging to individuals only is history now:
“The individuals, if organized in an association with the aim to protect the nature and landscape, may practise their right to a favourable environment stipulated in Art. 35 of the Charter [of Fundamental Rights and Freedoms] through this association.”
(Para. 37).
The Court also emphasized that the requirements of the Aarhus Convention must be fulfilled in the Czech Republic as the State Party to this Convention, and criticized the persisting over-restrictive interpretation in the field of access to justice, esp. Art. 9 (2) of the Convention.
As for the change in legislation, there was a substantial amendment of the Czech environmental impact assessment law in 2015. In the Czech Republic, the environmental impact assessment (EIA) is regulated in Act No. 100/2001 Coll., on environmental impact assessment. Some aspects of this EIA regulation are closely connected with the implementation of the Aarhus Convention. Based on objections of the Aarhus Convention Compliance Committee and of the European Commission, the Czech EIA Act was amended and the new version came into force on 1 April 2015. The amendment (Act No. 39/2015 Coll.) brings far-reaching changes of the conceptual model of the EIA procedure in the Czech Republic.
The EIA procedure is a specific procedure in the Czech Republic, separated from the “main” decision making proceedings (separated e.g. from territorial planning permitting, building permitting, facility operation permitting etc.). Up to 2015, the main requirements of the EIA procedure concerning the public were applied in the EIA procedure only, not in subsequent decision making proceedings. One of the main aims of the amendment was to ensure the public participation and the access to justice for the public concerned also in the subsequent decision making proceedings.
The new version of the EIA Act guarantees the possibility for environmental NGOs to take part in the whole range of proceedings subsequent to EIA procedure. Moreover, it enables NGOs to appeal to higher administrative authorities against administrative decisions taken in these subsequent administrative procedures regardless of their participation or non-participation in those administrative procedures. Moreover, the new version of the EIA Act allows environmental NGOs to bring lawsuits to administrative courts against final decisions (permits, licences, authorizations) of administrative authorities taken in procedures subsequent to the EIA procedure. The judicial review shall cover both substantive and procedural issues.
Grant project of the Grant Agency of the Czech Republic No. 14-32244S "Human right to environment in national law: advanced theory, poor practice?"