Dr. Csaba Kiss (EMLA)
- Letkés Side Branch Case |
| 1. Branch
of law (administrative, civil etc.): |
Administrative
law |
| 2. Sub-branch
of law (water protection, forestry, damage, nuisance
etc.): |
Water
protection, nature conservation |
| 3. Authorities
(first instance, second instance, court revision,
extraordinary legal remedies used in the given case): |
First
instance administrative authority: regional water
management agency
Second instance administrative authority: National
Water Management Agency
Court revision done by Székesfehérvár
City Court (first instance decision made only) |
| 4. Parties
and other participants of the case (clients, interveniers,
experts, witnesses etc.) |
Plaintiff:
Ipoly Unió - Ipel'ska Unia Hungarian-Slovakian
cross-border NGO
Defendant: National Water Management Agency |
|
5. Subject of the case
|
| a) concerned
rights and responsibilities and their legal bases |
According
to the Act on Water Management of Hungary, as a
part of the Gabcikovo-Nagymaros Dam Landscape Restoration
Plan, the water management agency permitted the
elimination of a side branch of the river Ipoly
by way of filling it with soil. The local NGO claimed
legal standing in the case for being able to appeal
the first level decision. |
| b) concerned
environmental effects, problems |
Units
of engandered and protected species were killed
by this method, and also a certain part of habitat
was destroyed in the Duna-Ipoly National Park. |
| c) concerned
territory |
The
territory is the area of the side branch of the
river Ipoly near and across the Hungarian-Slovakian
border, at Letkés and Ipolydamásd. |
|
6. Time table of the case
|
| a) time
order of the events before the case started |
First
level permit: 03/05/1996
Completion of the water works: 5/11/1996
Finishing of the works: 30/11/1996
Official approval of the works: 16/12/1996 |
| b) timing
of the events of the legal process |
Appeal
of the Ipoly Unió: 15/11/1996
Second level permit: 30/09/1997
Action of the Ipoly Unió: 06/11/1997
First level court decision: 19/12/1998 |
| c) timing
of parallel events |
none |
|
7. Legal arguments
|
| a) the
author’s arguments and their legal bases |
- the
activities require a prior EIA and it was not performed
- the river crosses the border and the problems
affect international relations; no approval of the
Cross Border Waters Committee was requested prior
to the permitting
- the nature conservation importance of the area
would have required more careful considerations |
| b) the
counterpart’s arguments and their legal bases |
- by
definition this activity does not fall under the
obligation of performing a prior EIA
- the Cross Border Waters Committee did not give
an opinion, therefore they agreed with the permit
- the nature conservation agency participated in
a process prior to this, and gave its consent, so
the earlier consent can be applied to this case,
too
- the validity period of the permit is over, the
works are completed, therefore legally there is
no possibility for a court review any more |
|
8. Content of the decisions
|
| a) important
elements of the lower level decisions |
- first
level administrative: the area (15 hectares) is
heavily deteriorated already, and the rainwater
must be canalized into the main river branch; these
areas were planned to be inundated anyway
- second level administrative: no EIA is required
according to the environmental protection agency,
either; stated that the area is really a habitat
for highly protected bird species; the side branch
is a marsh already, and is sometimes full of waste;
the works are already completed
- first level judicial: the validity period of the
permit is over, the works are completed, therefore
the case is dismissed |
| b) the
essence of the final decision (substantial part
and reasoning) |
There
is no final decision yet. |
|
9. Implementation of the decision
|
| a) conditions
of implementation, compliance of the obliged parties |
The
decision can be easily implemented, because the
works are completed, so implementation means status
quo in this case. There is no obligation for the
concerned parties if the decision remains on the
second judicial level. |
| b) necessary
enforcement elements |
There
is no need to enforce it, and even if the decision
will be amended, there is no way to turn back the
time and restore the side branch of the river; the
decision will be a theoretical one in this case. |
| c) possibilities
for public participation in implementation/enforcement |
No
public participation possibilities (see: above). |
| 10.
Comments of the Author: |
The
trend established by this judicial decision is extremely
dangerous. It literally means, that after a permit
is over its validity period (let us say 1 year),
and after the installation is built, there is no
possibility for a later judicial review of the permit
from constitutional and legal point of view. This
tendency must be stopped, because it motivates the
agencies to "cooperate" with the designers, and
issue permits with short validity terms, and it
also motivates the builders to rush the building,
even in case of illegal permitting. |
|
|
dr. László Bencze
(EMLA) Filling Station in Nagykáta Town |
| 1. Branch
of law (administrative, civil etc.): |
Administrative law. The Act
on General Rules of Administrative Procedure says
that a client in an administrative procedure is
a person or organisation whose rights or lawful
interests are affected by the procedure. |
| 2. Sub-branch
of law (water protection, forestry, damage, nuisance
etc.): |
Building law. The Ministerial
Decree on Building Permit Procedure says that when
a building permit is issued, then the decision must
be sent to the owners of those houses or lands which
are next-door neighbours of the land to which the
building permit applies. |
| 3. Authorities
(first instance, second instance, court revision,
extraordinary legal remedies used in the given case): |
First instance: municipality.
Second instance: county administration office.
Court revision: local court on the first instance,
and the county court on the second instance. Extraordinary
legal remedy: a petition for supervision, based
on legal error in the judicial procedure, can be
submitted to the Supreme Court. (Note: the system
changed on 1 January 1999 – in the administrative
court procedure the county courts have become the
first instance, and there is no second instance,
only extraordinary legal remedy before the Supreme
Court.) |
| 4. Parties
and other participants of the case (clients, interveniers,
experts, witnesses etc.) |
The clients of the case were
the citizens of the town, directly affected by the
construction of the filling station. |
|
5. Subject of the case
|
| a) concerned
rights and responsibilities and their legal bases |
The Constitution guarantees
the right to a healthy environment. Furthermore,
the Constitution provides for everybody’s right
to appeal to court. The Act on General Rules of
Administrative Procedure provides the right for
clients whose rights are affected, to express their
point of view in a procedure, and to appeal against
a decision. |
| b) concerned
environmental effects, problems |
The construction of filling
stations in the middle of inhabited areas, especially
green areas, reduces the number of green places
in urban areas, where there are anyway few green
spots left. Also, it is disadvantageous for the
aesthetic value of built environment. The operation
of filling stations increases the intensity of traffic,
causing air and noise pollution to the people living
in the neighbourhood. |
| c) concerned
territory |
The territory is situated in
a small town. It is a square, originally a park
with lawn and old trees. The square is surrounded
by roads, and on the other sides of the roads there
are small houses with gardens. |
|
6. Time table of the case
|
| a) time
order of the events before the case started |
The municipality of the town
and the investor signed a contract in December 1995,
in which the municipality gave the land for rent
to the investor. The municipality issued a building
permit for the construction of the filling station
25 March 1996. The people living in the neighbourhood
were – not officially - informed about the plan
in June 1996. They protested against the project,
but the municipality did not change its opinion. |
| b) timing
of the events of the legal process |
The clients officially received
the building permit on 18 November 1996. They made
an appeal to the County Administration Office on
29 November 1996. The authority held its decision
on 24 May 1997. The clients submitted their petition
to the Local Court on 23 June 1997. The Court held
its trial and made its sentence on 19 February 1998. |
| c)
timing of parallel events |
While the administrative procedure
on the second instance was going on, the municipality
modified the regional development plan of the concerned
territory. The original function of the land was
residential area, and it was changed for industrial
area. The investor - despite that there was an appeal,
which means the implementation of the decision is
suspended – started the construction in May 1997
and within a few month it has been completed. |
|
7. Legal arguments
|
| a) the
author’s arguments and their legal bases |
The Constitution guarantees
the right to a healthy environment. It also protects
private property. The Act on General Rules of Administrative
Procedure says that a client in an administrative
procedure is a person or organisation whose rights
or lawful interests are affected by the procedure.
The Act provides the right for clients whose rights
are affected, to express their point of view in
a procedure, and to appeal against a decision. In
the given case, the construction of the filling
station caused pollution, which disturbed the clients,
abused their right to a healthy environment and
their right to their private property. There was
alternative place for the construction, outside
the town, which would have been suitable. The municipality
modified the regional development plan already after
the building permit was issued, so the municipality
created a legal basis for its own decision long
after the decision itself had been held. Furthermore,
the municipality issued a building permit for a
place, which was in the municipality’s property
– this is conflict of interest. |
| b) the
counterpart’s arguments and their legal bases |
The counterpart, the municipality
claimed, that according to the Ministerial Decree
on Building Permit Procedure says that when a building
permit is issued, then the decision must be sent
to the owners of those houses or lands which are
next-door neighbours of the land to which the building
permit applies. This means, that in the given case
the neighbouring land is the road, so the people
living on the other side of the road have no right
to take part in the procedure, and their interests
cannot be taken into consideration. |
|
8. Content of the decisions
|
| a) important
elements of the lower level decisions |
The municipality issued the
building permit, with very short reasoning, saying
that the plan is in accordance with the applicable
legal regulations.
The County Administration Office did not change
the decision of the first instance. In its reasons
stated, that the municipality modified its regional
development plan, so there is no legal obstacle
to the construction. The decision did not accept
the local citizens’ claim.
|
| b) the
essence of the final decision (substantial part
and reasoning) |
The Local Court decided in its
sentence, that the decision of the first instance
was illegal, because the municipality issued a building
permit for a place which was in the municipality’s
property, and this kind of conflict of interests
is illegal. Another municipality should have done
the procedure. Therefore, the Court annulled the
administrative decisions, and sent the case back
to the first instance, and ordered that another
municipality must be nominated for doing the procedure.
Otherwise, the Court did not consider any other
legal arguments, giving no answer to the other legal
problems.
(However, during the trial, the judge verbally expressed
her opinion, that the Act on Administrative procedure
is lex generalis, while the building regulation
is lex specialis, so the lex specialis is applicable.
According to the building regulation, the people
who live on the other side of the road cannot be
considered as clients, so have no right to protest.) |
|
9. Implementation of the decision
|
| a) conditions
of implementation, compliance of the obliged parties |
The investor - despite that
there was an appeal, which means the implementation
of the decision is suspended – started the construction
in and within a few month they have completed it.
The municipality did not take any measure to stop
the construction.
We have no information yet about the new administrative
procedure. |
| b) necessary
enforcement elements |
The municipality has an authorisation
and responsibility to stop illegal construction,
but the municipality did not fulfil its responsibility. |
| c) possibilities
for public participation in implementation/enforcement |
The citizens have a right to
access to information, so they can read all the
documents related to case, including those related
to implementation and enforcement issues. Furthermore,
they can establish an environmental NGO and to claim
their right to have legal standing in the procedure. |
|
|
Maria Longi (PELA)
Poland Ombudsman Case |
| 1.
Branch of law (administrative, civil etc.): |
Administrative |
| 2. Sub-branch
of law (water protection, forestry, damage, nuisance
etc.): |
Nature Protection |
| 3. Authorities
(first instance, second instance, court revision,
extraordinary legal remedies used in the given case): |
Polish Supreme Court (this case
was an appeal to the Polish Supreme Court by the
Ombudsman regarding a Supreme Administrative Court
(NSA) decision; the Supreme Court reversed the NSA
decision and remanded the case). |
| 4. Parties
and other participants of the case (clients, interveniers,
experts, witnesses etc.) |
PELA Client:
The Polish Association for the Protection of Birds
(OTOP) |
|
5. Subject of the case
|
| a) concerned
rights and responsibilities and their legal bases |
This case concerned the right
of civic organizations to appeal administrative
decisions to the NSA on cases concerning the legal
interests of other people. The Supreme Court
found this right to exist if it is justified in
the statutory goals of the organization and if it
supports the public interest, so long as the matter
is not initiated soley in the legal interest of
an individual. The legal basis is found in
the NSA Act, which must be read in conjunction with
the Administrative Procedure Code. |
| b) concerned
environmental effects, problems |
- The underlying case concerned
the effect of mining and storing riverbed materials
on regional bird habitats. Research conducted
by OTOP, a registered NGO, indicated that the activities
of Serval would threaten the habitat of birds nesting
in the region. In its appeal to the MEPNF,
OTOP alleged that the permit issued to Serval by
the Warsaw Province did not comply with the Warsaw
spacial development plan and that Serval's activities
also required the issuance of another license since
the activities took place in a special flood zone. |
| c) concerned
territory |
A section of the Vistula River,
Poland |
|
6. Time table of the case
|
| a) time
order of the events before the case started |
July 30, 1996. Serval
Corporation obtained a permit from the Warsaw Province
to extract, mill and store riverbed materials from
a section of the Vistula River. |
| b) timing
of the events of the legal process |
OTOP appealed the decision of
the Warsaw Province decision to issue the permit
to the Minister of Environmental Protection, Nature
Resources and Forestry (MEPNRF).
March 24, 1997. MEPNRF upheld the Warsaw Province
decision, stating that the permit issued was closely
connected the special license alleged to be required,
and that all legal requirements were met.
April 28, 1997. OTOP appealed the MEPNRF decision
to the NSA in Warsaw.
October 9, 1997. The NSA dismissed the matter,
claiming that it did not have the authority to review
the MEPNRF decision.
May 26, 1998. The Ombudsman appealed the NSA
decision to the Polish Supreme Court.
October 8, 1998. The Supreme Court overruled
the NSA decision, ordering the NSA to hear the case
on remand. |
| c) timing
of parallel events |
- |
|
7. Legal arguments
|
a) the author’s arguments and their legal bases |
In urging the Ombudsman to appeal
the NSA case to the Supreme Court, the Polish Environmental
Law Association (PELA) outlined the legal arguments
as to why the NSA decision on standing was clearly
in violation of both the text and intent of the
law. Most importantly, the NSA decision
signified a narrow reading of the ability of civic
organizations to appeal administrative decisions
to the NSA. In looking at only the words of
OTOP's statute and not at the practical implementation,
the NSA was effectively depriving all civil organizations
from access to justice absent the specific NSA wording
in their statutes. This was highlighted by
PELA as a particularly glaring error, especially
in light of Article 31 of Poland's Administrative
Procedure Code (APA), which was passed as an effort
by the legislature to "normalize" the rights of
social organizations to participate in administrative
actions. Article 31 APA allows social organizations
to bring administrative actions in matters concerning
other people, if motivated by the organization's
statutory goals and public interest requires it.
To limit this provision by such a literal interpretation
of Article 33 would be absurd.
Finding little legal support for the NSA interpretation,
in the text of the law or otherwise, PELA pointed
out the potential dangerous precedent which would
be set by this decision. This interpretation
goes against the growing tendency of countries and
courts to allow civic organizations greater access
to the court system in support of matters of public
interest. If upheld, the NSA decision could
have negative effects on the activities of all civic
organizations, not limited to environmental NGOs.
As to whether the matter "concerns the interest
of another person" the Ombudsman argued that if
the basic goal of the organization concerns environmental
protection, then this is always an interest in the
environment, including all people using it.
The question is not whether the organization's statute
specifically states that it's duty is to protect
other people and their legal interests, but whether
the matter, the protection of which is a concern
of the organization, is of interest to another person
and may be subject to legal risk. The Ombudsman
argued that if the NSA indisputably recognizes that
the protection of birds is a basic goal of OTOP,
it must also agree that the organization, in protecting
birds, is acting "within the scope of its statutory
activities." |
| b) the
counterpart’s arguments and their legal bases |
As this was a special appeal
from the Ombudsman to the Supreme Court, there was
not officially a "counterpart" in the Supreme Court
case. However, in the case that was being
appealed, the NSA claimed that it did not have authority
to review the MEPNRF decision. The NSA relied
on a literal interpretation of Article 33 of the
NSA Act, which entitles civic organizations to bring
complaints to NSA courts only when the issue of
concern is within the scope of their statutory activities,
and concerns the legal interests of other people.
Section (7) of OTOP's statute states that OTOP can
participate in administrative actions in matters
concerning threats to bird habitats. The NSA
concluded that OTOP's main goal was the protection
of birds, and that this does not concern a person
or their legal interests. OTOP, in the opinion
of the NSA, did not have the necessary activities
precisely stated in its statute to allow it to appeal
to the NSA under Article 33 |
|
8. Content of the decisions
|
a) important elements of the lower level decisions |
The NSA decision relied on a
literal and narrow reading of Article 33 of the
NSA Act, which allows civic organizations to appeal
administrative decisions to the NSA. This
decision virtually ignored the provisions of the
Administrative Procedure Code enacted to assist
civic organizations in obtaining access to administrative
courts. |
| b) the
essence of the final decision (substantial part
and reasoning) |
The Supreme Court agreed that
OTOP's appeal to the NSA falls within the confines
of Article 33 of the NSA Act, which must, it stated,
be read in conjunction with Article31 of the APA.
The Court held that civic organizations are entitled
to bring complaints concerning the legal interests
of other people if it is justified in the organizations
statutory goals and if it supports the public interest,
so long as the matter is not initiated soley in
the legal interest of an individual. The Supreme
Court found that the literal NSA view of the law
erroneously tried to un-do what the legislature
sought to accomplish in the administrative code
by normalizing NGO participation in administrative
actions. |
|
9. Implementation of the decision
|
| a) conditions
of implementation, compliance of the obliged parties |
The case was remanded to the
NSA, which was required to hear the case de novo. |
|
|
|
