On 18 December 2018 the Second Chamber of the Constitutional Court (judge rapporteur Jaroslav Fenyk) dismissed a constitutional complaint of DUHA Movement - Friends of the Earth Czech Republic (hereinafter “petitioner”). The Constitutional Court, however, declared that reasoning of the judgment of the Supreme Administrative Court is deficient inasmuch it lacks a thorough analysis of the scope of Article 70 paragraph 2 of the Act No. 114/1992 Coll, on Nature Conservation and Landscape Protection, as amended (hereinafter “Act on Nature Protection”), and a proper justification of prioritizing narrow construction of this provision over broader one favored by the complainant.
The petitioner is a non-governmental environmental organization. It unsuccessfully attempted to become a party to administrative offense proceedings instigated by Czech Environmental Inspectorate (hereinafter “CEI”) against Administration of Šumava National Park and Protected Landscape Area (hereinafter “Administration of Šumava NP and PLA”) for breaching certain provisions of the Act on Nature Protection – mainly prohibition of intensive farming in the area of Šumava National Park and prohibition of tampering with habitat of protected species. Since the CEI refused to recognize the petitioner as a party to the proceedings, the petitioner appealed to the Ministry of Environment, then filed an administrative lawsuit in Municipal Court in Prague and consequently appealed to the Supreme Administrative Court. None of them, however, decided in the petitioner’s favor.
The petitioner thus filed a constitutional complaint in the Constitutional Court, arguing that the abovementioned government agencies’ decisions and court judgments violated, inter alia, its right to a fair trial, right to participate in administration of public affairs, and principle of equality of arms. It disputed the notion that environmental organizations cannot become a party to administrative offense proceeding instigated against a third party pursuant to the Act on Nature Protection. Moreover, it voiced its disagreement with a claim of the Supreme Administrative Court that Article 70 paragraph 2 of the Act on Nature Protection is prospective in its nature, thus granting environmental organizations the right to become a party to only those proceedings in which it is decided whether or not to permit future interference with nature and landscape, and not proceedings that are instigated in reaction to past actions and transgressions of a third party.
The Constitutional Court concluded that in this particular case there was no direct and lasting interference with the abovementioned fundamental rights of the petitioner, because even though the petitioner had not become a party to those proceedings, the CEI took into account evidence submitted by it – namely an expert report sponsored by the petitioner. Moreover, the evidence submitted by the petitioner was – along with other pieces of evidence – crucial for the CEI’s decision by which the Administration of Šumava NP and PLA was found guilty of the abovementioned administrative offenses. Considering that the petitioner-sponsored expert report was de facto taken into account and that the petitioner never suggested any additional pieces of evidence or made further proposals that should have been heard by the CEI or the courts, the Constitutional Court could not but declare to declare that the fundamental rights of the petitioner were not violated.
Nevertheless, the Constitutional Court also noted that the reasoning of the Supreme Administrative Court regarding the non-recognition of the status of the petitioner as a party to the proceedings is insufficient. Narrow construction of Article 70 paragraph 2 of the Act on Nature Protection adopted by the Supreme Administrative Court is only one of the available options, and, as the Constitutional Court pointed out, the wording of this provision neither expressly includes nor expressly excludes possibility of environmental organizations becoming a party to administrative offense proceedings instigated against a third party. In other words, this provision is open to different possible interpretations. Thus in the light of Article 9 paragraph 3 of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, the Supreme Administrative Court was obliged to explain in detail why it chose a narrow construction of the provision, thereby creating an explicit exception to the participatory rights of the environmental organizations where (originally) there was none.
Furthermore, the Constitutional Court opined that there was indeed a third way how to approach this legal problem. It partly agreed with the Supreme Administrative Court that it was not desirable to afford the environmental organizations full scope of participatory rights in administrative offense proceedings instigated against a third party. Yet it disagreed with the binary approach of the Supreme Administrative Court – i.e. to afford the environmental organizations full set of procedural rights or none at all – and stressed that in some cases the environmental organizations might be recognized as a party to the proceedings, but granted only a narrower set of procedural rights. This approach would be preferable especially when the administrative offense proceedings are the very first – and probably the last – proceedings in which environmental impact of certain activities is considered by state authorities. In such cases, the scope of procedural rights afforded to the environmental organizations should be similar to the scope of procedural rights afforded to them in appropriate administrative proceedings, were they ever conducted.