Spain/España -- AJA v Spain before the Aarhus Convention Compliance Committee regarding decision-making on a residential development project in the city of Murcia

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To:      Compliance
Committee of the Aarhus Convention on Access to Information, Public
Participation in Decision-Making and Access to Justice in Environmental Matters
(1998)

 

Via:     Mr.
Jeremy Wates

            Secretary
to the Aarhus Convention

            United
Nations Economic Commission for Europe

            Environment
and Human Settlement Division

            Room
332, Palais des Nations

            CH-1211
Geneva 10, Switzerland

            Phone:
+41 22 917 2384

            Fax:
+41 22 907 0107

            E-mail:
jeremy.wates@unece.org

 

From:  Association
for Environmental Justice (Asociación para la Justicia Ambiental, AJA), Spain

 

 

 

Communication on
non-compliance by Spain with the Aarhus Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental
Matters

(Murcia
Urbanization Project on Huerta Tradicional)

 

 

SUMMARY

 

 

1.     
The
communication claims non-compliance of Spain with its obligations under article
4, paragraph 8; article 6, paragraph 1 a), paragraph 2 a) and b), paragraph 4;
article 9, paragraphs 2, 3, 4 and 5.

 

2.     
This
communication addresses an urbanization project developed in Murcia city,
Spain. The project approval went through complicated and lengthy procedure,
which basically covers two major issues: land and urbanization (construction)
issues. No specific environmental decision making procedure was applied to
project approval. The project is about development of a residential area to
construct houses for young families (Joven
Futura project). The city of Murcia decided to assign special lands of
traditional for the use of the project (Huerta
Tradicional).

 

3.     
The
communicant, Association for Environmental Justice, is a non-profit
environmental public interest law organization based in Spain. The communicant
was providing help and legal advice to the public concerned affected by the
project.

 

4.     
The
communication claims that by imposing a fee on environmental information
requested from public authorities and related to decision-making having
environmental impacts, Spain was not in compliance with Article 4 paragraph 8
and Article 6 paragraph 6.

 

5.     
The
communicant claims that procedures of decision making, including on land
planning and project itself, violated public participation obligations under
Article 6 paragraphs , paragraph 1 a), paragraph 2 a) and b), paragraph 4.

 

6.     
The
communicant claims that denial by the courts to suspend decisions taken by
local authority in the court law suit, where the merits of the case relate to
lack of EIA in decision making process, as well as length of the procedure on
granting suspension, violated requirements of Article 9 paragraph 4.

 

7.     
Lastly,
the communicant claims that imposing of costs in a court proceeding related to
suspension measure (of the governmental decision challenged) on a non-profit
organization, while no assistance mechanisms were available to affected public,
constitutes a violation of the requirements of paragraphs 4 and 5 of the
Article 9, and, in this connection, of the paragraphs 2 and 3 of Article 9.

 

I.                   
The Communicant

 

8.     
The
communication is submitted by Association for Environmental Justice (Asociación para la
Justicia Ambiental, AJA), Spain, hereinafter AJA. AJA is a registered non-governmental
environmental public interest law organization founded in 2004.

 

9.     
Contact
Information:

 

Address: P° Maria Agustin, 3, dcha. E-50004 Zaragoza, Spain.

Tel. 0034 976 20 20 76

Fax 0034 968 22 71 91

Contact Person: Eduardo Salazar Ortuño, co-founder
& lawyer.

Tel. 0034 968 21 14 39/ 0034 637432002

E-mail: eduardo.salazar@elaw.org

 

II.                
State Concerned

 

10.
 This communication concerns non-compliance
with the Aarhus Convnetion by Spain. Spain signed the Convention on June, 25,
1998 and ratified on Dec, 29, 2004.

 

III.              
Confidentiality

 

11.
 The communication is not confidential.

 

IV.             
The issue and facts

 

The project

 

12.
 In February 2003 a private company Joven Futura (Future Youth) made a
proposal to Murcia City Council to start negotiations about development of a
residential area to construct houses for young families covering 92,000 square
meters. The proposal was to conclude a special agreement between the company
and Murcia City Council to enable urbanization of wide areas of lands near
Murcia city.

 

13.
 The proposal for the agreement put forward a
special requirement to be included into the agreement – to re-classify the land
slot in question into another category of lands. Such a re-classification would
constitute part of the city’s obligations under the proposed agreement. Namely,
the company proposed that the City Council submits for re-classification part
of the lands into “residential lands” (i.e. lands where residential houses can
be constructed) and groups them into a single residential land slot.

 

14.
 After various negotiations, in July 2003
Murcia City Council approved the agreement, which afterwards went through
authorization by local government. On October 24, 2003, the agreement was
published in the Official Journal of Murcia Region. The agreement included the
obligation by city council to re-classify 111,000 square meters land slot,
which will become property of Joven
Futura and where the company will construct approximately 733 apartments.

 

15.
  At the time of conclusion of the agreement,
the lands in question were classified as “non-residential” (Sp: no urbanizable) by
Murcia city General Plan (Plan General de
Ordenación Urbana de Murcia), as revised in Jan 31, 2001. This latest revision of Murcia city
General Plan was subject to environmental impact assessment (EIA) before its
adoption in 2001, as required by national and community (EC) law. The EIA
verified and justified landscape, historical, cultural, environmental,
scientific and archeological values of lands to classify some of them as
non-residential. Such non-residential lands are the lands which are subject to
special protection regime incompatible with urbanization of such lands.

 

16.
 The land slot allocated for the project is
located on the territory of Huerta Tradicional (traditional harden) being lands under special
protection under Murcia city General Plan “because of its framework perimeter
value for traditional gardens…increasingly occupied by urban expansion on North
and South; because of prevailing fruit gardens with low construction density;
because of its   landscape and
environmental significance deriving from the above mentioned values, which
conservation is essential for the quality of the environment of the
metropolitan system of the valley in its entirety” (Article 7.4.1. of the Mucia
City General Plan of 2001). Being granted a protection category of “Huerta
Perimetral” the lands were classified as non-residential. 

 

17.
 In May 2004 Urbanization Unit [of
municipality] submitted to the City Council draft Modification to the city
General Plan for the new residential zone (ZM-Ed3, Espinardo), as well as a
documents called “Environmental Accident Study” (developed by the company) and
“Draft EIA for Creation of Urban Zone ZM-Ed3, Espinardo”. The latest document
started with a reference to requirement in legislation to develop EIA for the
modification of city plans and it pretends to be an environmental impact
assessment. Environmental Accident Study claims that the lands proposed for
re-classifcation “have no special significance as garden”.

 

18.
 On June 24, 2004 Murcia City Council decided
to make a public notice about Modification to the city General Plan No50 for
establishment of a residential zone ZM-Ed3, Espinardo. It suggested development
of a medium density residential area, i.e.0,6 m2/m2. The notice was published
on July 22, 2004 in Murcia Region Official Journal and set one month for public
comments period. The Council at the same time made a request to environmental
authority to clarify whether such modification requires an EIA.

 

19.
 On September 15, 2004, after public comments
period was over, the company Joven Futura
requested a change of area density into 0,95 m2/m2, that being the highest
density category of residential lands in Murcia. Chief of the city Urban
Planning department signed a report saying this “light change” is not
significant and does not require new public comment procedure. On Sep 21, 2004,
the project was submitted by the city Urbanization Board for initial approval
together with a decision to notify affected owners and authorities about
initial approval.

 

20.
 On Sep 24, 2004, Environmental Quality Office
adopted resolution saying that no EIA is needed for this modification of
General Plan. The resolution was based on the decision taken at extraordinary
session of EIA Commission held on Sep 23, 2004 (the Commission is a body
competent to take pre-screening decisions under EIA legislation). Its decision
stipulated that the lands in questions were abandoned because of its low
agricultural, environmental values as well as profitability.  

 

21.
 Since the decision to submit the project for
initial approval, various affected persons notified the City Council about
their concerns. Over 2,000 people expressed its disagreement with proposed
re-classification of lands, including owners of lands and houses. The key
issues raised where absence of EIA; legality of agreement between City Council
and Joven Futura since neither was
owner of the lands subject to re-classification; landscape and environmental
values of the lands protected by city General Plan; others.

 

22.
 On April 28, 2005, City Council adopted
modification No50 to city General Plan, re-classifying the lands in question as
“residential”. Consequently, a Land Slot Plan ZA-Ed3 (Plan Parcial) was adopted in 2005 setting down details of the
future development in the area (residential construction).  

 

23.
 The construction project itself was approved
by the resolution of the City Government on April 5, 2006, following its
“initial approval” in 2005. The project has official name as “Urbanization
Project UA1 of the Land Slot Plan ZA-Ed3”. No EIA study was ever done for the
project.

 

24.
 Soon, after project approval construction
works began. After the construction works began, numerous remaining of the
Roman Empire, Germanic folks and Al-andalus culture times were found on the
lands under construction. In some parts, the construction works were imposed
limitations to protect some of the archeological sites discovered. See more
information about the project: http://www.jovenfutura.es 

 

Public efforts
to exercise its rights to information and participation

 

25.
 The public made numerous efforts to impact
all the decisions taken at various stages of the decision making process
described above. In particular, the Asociación
de Vecinos Senda de Granada Oeste (Association of Senda de Granada Oeste
Neighbors) had been a leading non-governmental organization trying to impact
the decision-making process (hereinafter – Association). The Association united
owners and users of traditional lands situated in the project development area
and affected by it. Most of the facts mentioned in this communication refer to
the actions by this Association or its representatives (AJA, the communicant).

 

26.
 Most documents related to the project
adoption had to be requested from Murcia City Council and other relevant
authorities, including documents on studies made, officials reports, public
participation process. The city imposed a charge on copies of the documents
requested of 2 Euros/page, which the Association paid in all cases. One example
of a receipt is attached to this communication (Annex 3). In some cases, price
list indicates even higher prices for copies (such as city land plans), see
Fees Chart of Murcia Municipality Services of 2008, Annex 4).

 

27.
 Development and adoption of the agreement
between City Council and Joven Futura
provided for no public participation opportunities, including for the owners of
land slots within project area. The public was just informed about conclusion
of the agreement by the City Council via its publication in the Official
Journal of Murcia Region.

 

28.
 Adoption of the Modification No 50 to city
General Plan included one month period for public comments, as described above.
On September 29, 2004, the Association made numerous comments, including, inter alia:

-        
illegality
of the agreement and re-classification of lands itself since no consultations
were made with owners of the lands affected (most part of the lands affected by
the agreement);

-        
lack
of reasons for re-classification of lands that were classified as
non-residential a few years before for the period of 25 years;

-        
irreversible
loss of landscape and environmental values in case project is implemented on
those lands;

-        
the
need to conduct EIA, including to enable effective public participation.

 

29.
These
comments were never answered or acknowledged by the City Council.

 

30.
 Similar comments were made in written by the
Association for the draft Land Slot Plan and draft “Urbanization Project UA1 of
the Land Slot Plan ZA-Ed3” in 2005 and 2006 respectively. The City Council
didn’t paid attention to the arguments from the Association at to the need for EIA,
nor to the official reports from Water Administration (State) and Agricultural
Administration (Regional).

 

 

Administrative
and Court Proceedings

 

 

31.
 The Association (with the help of AJA, the
communicant) initiated a number of administrative and court proceedings.
Practically all decisions were challenged on all decision-making stages, with
no success, though. Some of them are explained in details below as much as they
are relevant to this communication.

 

32.
 On Jan 4, 2005, the Association made an
administrative claim to annul the Resolution by Environmental Quality Office
(saying that no EIA is needed for modification of General Plan) On July 27,
2005, the claim was rejected as inadmissible. The key reasoning for rejection
being that the decision not to conduct an EIA is of procedural nature and does
not decide on the merits of the issue (modification of General Plan).
Inadmissibility decision explained that the modification could happen even if
EIA would have been done and if it would have resulted in a negative
conclusion. This put an end to administrative proceedings as to Modification
No50 to City General Plan.

 

33.
 Later on, Modification No50 was challenged in
the Administrative Proceedings Court (Sala
de lo Contencioso-Administrativo Del Tribunal Superior de Justicia de Murcia).
As a part of this lawsuit, the Association requested, as a precautionary
measure, the court to suspend Modification No50 to City General Plan. Request
for precautionary measure was argued based on national legislation and Aarhus
Convention (article 9.3 and 9.4).

 

34.
 The court rejected this request for the
reason “because the decision on Modification No50 cannot have irreversible
impact on the environment since the Modification No50 does not grant directly
the right to start development of the area and [the development of the project]
is subject to future approval by other decisions” (court case 487/2005).

 

35.
 On July 4, 2006, the Association filed
administrative lawsuit to the same court challenging Urbanization Project UA1
of the Land Slot Plan ZA-Ed3 (finally adopted on April 5, 2006). In this
lawsuit the Association, inter alia, requested the court to suspend the
decision on final adoption of “Urbanization Project UA1 of the Land Slot Plan
ZA-Ed3”.

 

36.
 In addition to arguments related to
precautionary principle of national and international environmental law, the
Association argued that both requirements of national law for precautionary
suspension are satisfied in this case (those two being periculum in mora and fumus
bonis iuris requirements). In
brief, the Association argued that adoption of the project gave last green
light to the construction works and if the lands go under construction this
will result in irreversible lost of environmental and historical values (periculum in mora). As to fumus bonis iuris, the Association
argued obvious violations of EIA and land laws, evident violation of the
general interest of the public in preservation of the environment.

 

37.
 On March 12, 2007 (eight months after
requested, and eleven moths of construction) the Administrative Proceedings
Court took a separate decision on application of precautionary measure
(suspension). The court rejected the request based on consideration of periculum in mora element only. The
court noticed that preservation and assessment of environmental values was not
part of the project decision, but subject to consideration and subject of
preceding decisions, namely Modification No50 and Land Slot Plan (Plan Parcial). Since neither of them of
suspended by courts, the project cannot be suspended as well, the judgment
reads. In addition, the court said it has no strong evidence of existence of
environmental, cultural and agricultural values which could be irreversibly
damaged by project implementation (case 539/2006, Annex 1 to this communication).

 

38.
On
April 17, 2007, the Association filed an appeal to the decision of March 12,
2007. In addition to  periculum in mora and fumus bonis iuris requirements,  the Association argued that precautionary
suspension of project approval should not be linked to earlier decision and the
need to preserve newly discovered archeological sites.

 

39.
On
December 21, 2007, the Administrative Proceedings Court (Section One) rejected
the appeal based on similar arguments as first instance court. First, the court
noticed presumption of legality of administrative acts and exceptionality
nature of suspension measure. Second, in its opinion environmental values were
subject of previous (land modification) decisions, which were challenged and
pending in courts but not suspended. Third, urban issues in question (city
planning and development) are one of the fundamental general interests while
plaintiffs express private interests. Fourth, an environmental accident study
was done at the time of land planning (thought not an EIA). Lastly, the court
said that certain limitations were imposed on construction works in some places
to protect some of the newly discovered Roman remainings (court case 953/2007, Annex 2 to this communication).

 

40.
 In its decision of Dec 21, 2007, the court
imposed all costs on the plaintiff (the Association).

 

V.                
Applicable Articles of the Convention and Violations
Claimed

 

Costs of
Documents

 

 

41.
Paragraph
6 of Article 6 says:

 

“6. Each Party shall require
the competent public authorities to give the public concerned access for
examination, upon request where so required under national law, free of charge,
… to all information relevant to the decision-making […]”

 

42.
As
explained above, the public concerned requested documents related to
decision-making process (at various stages the requests were relates to land
decisions or project decisions). The City Council of Murcia imposed a charge of
2 Euro/page of copy. This clearly violates the requirement of Article 6 to
“give access for examination …free of charge .. to all information relevant to
the decision making…”.

 

43.
Article
4, paragraph 8 of the Aarhus Convention says:

 

            “8. Each Party may allow its public authorities to make a
charge for supplying information, but such charge shall not exceed a reasonable
amount. […]”

 

44.
 In a situation where the public concerned has
to pay for all the documents relevant to decision-making which affects its
wellbeing and made by the city authorities where they live, a fee of 2 EUR/page
cannot be seen “reasonable”.  

 

45.
 In addition, 2 EUR page cannot be seen as
costs covering the actual expenses made by the city council in order to
produce. Clearly, the wording of paragraph 8 means that the charge for
supplying the information is possible to compensate direct costs of information
supply incurred by the authorities, i.e. it prohibits imposing a charge as a
way to earn money. Therefore, the charge of 2 EUR per page for any information
requested is not in line with “reasonable amount” requirement.

 

46.
Finally,
the amount of charge is excessive if compared to the level of life in Murcia.
Average household budget per month Murcia is 2,337 EUR and 782 EUR per person
(2006, source Instituto Nacional de Estadística, www.ine.es).
That means, requesting just 390 pages of documents, a person is giving up it
monthly budget.

 

47.
This
constitutes violation of paragraph 8 of the Article 4.

           

 

Lack of Public
Participation

 

[Applicability of Article 6]

 

48.
 Article 6 is applicable to decisions having a
permitting nature of projects covered by the Annex I of the Convention:

 

“1. Each Party:

(a) Shall apply the provisions
of this article with respect to decisions on whether to permit proposed
activities listed in annex I;

(b) Shall, in accordance with
its national law, also apply the provisions of this article to decisions on
proposed activities not listed in annex I which may have a significant effect
on the environment. To this end, Parties shall determine whether such a
proposed activity is subject to these provisions; and […]”

 

49.
 Modification No50 to city General Plan,
re-classifying the lands in question as “residential” on April 28, 2005 and
consequently adopted Land Slot Plan ZA-Ed3 (Plan
Parcial) setting down details of the future development in the area
(residential construction) are land-related closely related to project itself
since they specify what kind of activity is envisaged on the lands subject of
those decisions. Both clearly fall under decisions “on whether to permit
proposed activities” as required by para.1(a) of Article 6.  The Compliance Committee has said considered
that certain land decisions amount to Article 6 decisions if they lead to
specific activities to be implemented on such lands (see, e.g. Albania
ACCC/C/2005/12; ECE/MP.PP/C.1/2007/4/Add.1, 31 July 2007, para’s 65-74).

 

50.
 The resolution on final approval of the construction
project approved by the the City Government on April 5, 2006, is a decision on
project itself. It also falls under decisions “on whether to permit proposed
activities” as required by para.1(a) of Article 6.

 

51.
 In the opinion of the public (the Association
and the communicant) all three decisions mentioned above require environmental
impact assessment under national and European Community legislation. Therefore,
the decision in questions fall under “activities listed in annex I”, namely
paragraph 20 of Annex I.

 

52.
 Alternatively, the decisions in question fall
under paragraph 1(b) of Article 6

 

53.
 Therefore, Article 6 is applicable to
decisions on a) Modification No50 to
city General Plan, b) adoption of the
Land Slot Plan ZA-Ed3 (Plan Parcial),
and c) final approval of project “Urbanization
Project UA1 of the Land Slot Plan ZA-Ed3”.

 

 [violation of
public participation obligations under Article 6]

 

54.
 While Aarhus Convention has direct
applicability in Spain, the government made certain legislative efforts to
transpose (implement) its provision into national law, including via
implementation of relevant EC legislation in relevant area.

 

55.
 Like in many other countries of UN ECE
region, public participation procedures are well prescribed in the EIA laws.
Therefore, early and effective public participation in environmental decision
making in Spain can only happen through EIA legislation. This due not only to
the procedures available, but also reflects the substance of the effective
participation: if no environmental study is made, the public cannot have access
to reports and other documents evaluating environmental and health risks, which
would enable the public to develop and express its own science-based opinion on
the issue.

 

56.
 It is clear that screening decision not to
develop EIA for Modification No50 was taken through “emergency” procedure and
cannot be possibly considered as allowing the public to affect it because of
timing. It also questions its impartiality and scientific reasoning. The
Association challenged in court screening decision as lacking necessary legal
and scientific arguments.

 

57.
 This violates the requirement of paragraph
1(a) of the Article 6.

 

58.
 The fact that one of the key elements of the
draft decision (prohibitively high density of construction) was changed
(introduced) after public comments period reveals that the public was not aware
of the nature of the decision to be taken; therefore, the public was not
adequately and effectively informed about the decision-making.

 

59.
 This violated the requirement s paragraph 2
a) and b) of th Article 6.

 

60.
 Lastly, all decisions taken (land and project
related) resulted from urban agreement between the city and the developer. The
public was never informed about plans to develop and sign the agreement,
neither about its drafts. Therefore, public participation opportunities came at
a time when the city of Murcia already assumed legal obligations towards the
developer as to land and project decisions.

 

61.
 This violated the requirements of paragraph 4
of the Article 6.

 

Financial
Barriers

 

62.
 The Association was exercising its rights to
challenge decisions in question based on Article 9 of the Aarhus Convention,
para’s 2 and 3.

 

63.
 The decision by the Administrative
Proceedings Court on the appeal to denial of precautionary measure put all the
costs on the plaintiff (the Association). The costs were 2148 Euros, mostly
covering lawyers’ fee of the City Council.

 

64.
 In this regard, paragraphs 4 and 5 of the
Article 9 say:

 

“4. […] the procedures referred
to in paragraphs 1, 2 and 3 above shall not prohibitively expensive. […]

5. […] each Party shall
consider the establishment of appropriate assistance mechanisms to remove or
reduce financial […] barriers to access to justice.”

 

65.
 Costs of the access to justice procedures are
well recognized as an element for the procedures to be fair and equal, as
required by the Article 9 itself (see e.g. report of the second meeting of the
Task Force on Access to Justice, para.19).

 

66.
Similarly,
high costs of litigation are also considered as illegal barrier in the exercise
of the right to fair trial (e.g., in the jurisprudence of the European Court of
Human Rights).

 

67.
 The plaintiff in the case was appealing court
decision on suspension of administrative decision challenged. The plaintiff is
a non-profit organization of farmers that use traditional methods of land use
and are affected by the decision allowing huge construction on the lands in the
area.

 

68.
 The responded in the case is a local public
authority, completely dependent on taxes paid the residents of the area,
including the members of the Association.

 

69.
 As mentioned, average monthly household
budget in Murcia is 2,337 EUR. Simple conclusion follows that the costs imposed
in this one proceeding are full monthly budget of a local family or three
monthly budget of a signle person in Murcia (with 782 Euros of average monthly
budget). Therefore, none of the members of the Association alone can afford
litigation costs related to challenging the decisions (land and project
related) in question.

 

70.
 No state assistance mechanisms are in place
that could have been used by the members of the Association. The Association
appears to be the only possibility for the affected public to protect their
environmental rights in court. In addition, the Association is reflecting
common and group interests of the many residents of the area.

 

71.
 It is clear that the costs imposed on the
Association are too high if compared to average personal income in the area and
the non-profit status of the Association.

 

72.
 The decision by the court to pay the costs of
local authority threatens all pending court cases related to the issue, and at
least three court proceedings related to decisions in question. The costs imposed
relate only to one separate proceeding (on suspension measure) in one of the
court proceedings mentioned.

 

73.
The
decision by the court can also have threatening effect on other members of the
public and the Association itself, and therefore can impose an effective
barrier on their right to access to justice in environmental matters.

 

74.
Based
on the above, imposing of costs in a court proceeding related to suspension
measure (of the governmental decision challenged) on a non-profit organization,
while no assistance mechanisms were available to affected public, constitutes a
violation of the requirements of 
paragraphs 4 and 5 of the Article 9, and, in this connection, of the
paragraphs 2 and 3 of Article 9.

 

Remedies
(suspension of acts)

 

75.
 Article 9 paragraph 4 says:

 

“4. […] the procedures referred
to in paragraphs 1, 2 and 3 above shall provide adequate and effective
remedies, including injunctive relief as appropriate […]”

 

76.
 The Association, in exercising its rights
under paragraphs 2 and 3 of the Article 9, file a lawsuit challenging
Modification No50 to city General Plan. At the same time, a request for
precautionary measure (suspension of the act) was filed to the court. The court
in its judgment (court case 487/2005) denied granting suspension of the act
since in the court view “the decision on Modification No50 cannot have
irreversible impact on the environment since the Modification No50 does not
grant directly the right to start development of the area and [the development
of the project] is subject to future approval by other decisions”.

 

77.
 When city government approved the
construction project itself, the Association filed a lawsuit challenging the
decision to approve the project. Similarly, it requested the court to suspend
the decision for the time of court deliberations. The court in a separate
judgment denied granting suspension based on the reason, in particular, “that
preservation and assessment of environmental values was not part of the project
decision, but subject to consideration and subject of preceding decisions,
namely Modification No50 and Land Slot Plan (Plan Parcial). Since neither of them of suspended by courts, the
project cannot be suspended as well” (case 539/2006). When appealed, this
judgment was upheld by a higher court (case 953/2007).

 

78.
 As clearly seen from the above, the public
affected by the decision was put in a situation where it has no possibility to
be granted suspension and guarantee due process.

 

79.
 Granting suspension of the decision
challenged was crucial to enable effective access to justice. The decisions for
which suspension was requested, were challenged, inter alia, for the lack of
environmental impact assessment. Therefore, the public could only raise its
environmental concerns only through court procedure. However, it would be only
possible if the procedure itself provides for a possibility of meaningful and
effective outcome.

 

80.
 While it appropriateness of the suspension
sought may be questioned by the government, the way courts apply the procedure
of granting the suspension is in violation of due process requirements, in
particular the provisions of Article 9 cited above (injunction relief). The
Association’s lawsuit had been considered through a procedure which provides
for no possibility of effective outcome because of irreversible material damage
caused during consideration period.

 

81.
Finally,
the procedure of granting the suspension was prohibitively lengthy. In the case
539/2006 (challenging the project) it took the court eight months to take a
decision on application of the suspension sought. Even if granted, the
suspension would be meaningless since it would happen eleven months after
decision taken and construction works started.

 

82.
 Based on above, the procedure of granting
denial of suspension, as well as reasons for denying it, violated the
requirements of paragraph 4 of the Article 9.

 

VI.             
PENDING
DOMESTIC REMEDIES

 

83.
 On March 18, 2008, the Association (with the
help of communicant) filed Constitutional Redress claim (Amaro Constitucional) to the Constitutional Court
of Spain related to costs of litigation and suspension of project approval.

 

84.
 Several lawsuits related to project approval
and land decisions are still pending in administrative courts. 

 

 

VII.           
Conclusions

 

85.
 Summarizing the above, the communicant
submits that Spain violated its obligations under article 4, paragraph 8;
article 6, paragraph 1 a), paragraph 2 a) and b), paragraph 4, paragraph 6;
article 9, paragraphs 2, 3, 4 and 5.

 

86.
 In particular, the communicant claims that:

 

a)     
by
imposing a fee on environmental information requested from public authorities
and related to decision-making having environmental impacts, Spain was not in
compliance with Article 4 paragraph 8 and Article 6 paragraph 6.

 

b)    
procedures
of decision making, including on land planning and project itself, violated
public participation obligations under Article 6 paragraphs , paragraph 1 a),
paragraph 2 a) and b), paragraph 4.

 

c)    
denial
by the courts to suspend decisions taken by local authority in the court law
suit, where the merits of the case relate to lack of EIA in decision making
process, as well as length of the procedure on granting suspension, violated
requirements of Article 9 paragraph 4.

 

d)    
imposing
of costs in a court proceeding related to suspension measure (of the
governmental decision challenged) on a non-profit organization, while no
assistance mechanisms were available to affected public, constitutes a
violation of the requirements of paragraphs 4 and 5 of the Article 9, and, in
this connection, of the paragraphs 2 and 3 of Article 9.

 

 

Respectfully submitted,

 

[signed]

 

 

 

 

 

Eduardo Salazar Ortuño

LAWYER

Association for Environmental Justice

Asociación para la Justicia Ambiental, AJA,

Spain

 

 

Attachments:

 

Annex 1: Court judgment of March 12, 2007 (case
539/2006)

Annex 2: Court decision of Dec 21, 2007 (case
953/2007)

Annex 3: Payment Receipt for Provision of Information

Annex 4: Fees Chart for Services by Murcia City
Council (2008)