The Aarhus Convention[1] recognises the role of access to justice in environmental matters as a distinct right. This is intended to emphasise the significance of this institution for the exercise of other procedural rights that constitute the right to a healthy environment. In particular, the right of access to environmental information, right to participate in environmental decision-making, as well as the broadly understood right to enjoy nature.
Access to justice allows for the proper exercise the rights applicable to be a subject of court remedy (or its restoration by court, what being a systematic approach may result in obstacle removal). This will ultimately benefit both society and the environment, provided that justice is fair and access to it does not involve overcoming significant obstacles.
Currently, the absence of an accessible justice system in Belarus, including in environmental matters, represents a significant challenge. The existing judicial institutions are as far removed from the justice. This is not limited to politically motivated cases. The competence of the judiciary is in decline, with higher courts failing to exercise proper control. The workload is high, and the courts are required to consider factors that are not reflected in the law, such as “proletariat justice” and the interests of the state or influential individuals. Finally, corruption is a significant issue, encompassing not only the classic issuance of a desired decision in exchange for a paid sum, but also any abuse of power for personal gain, including fame, notoriety, favour, and so on. The Belarusian courts have become administrative-type institutions issuing decisions according to pre-tested algorithms. Bringing an unconventional case may impede the system’s functionality, demonstrating the absolute unsuitability of this approach.
The restoration of justice can be imagined in two ways, depending on the political situation.
Way one is minimalist. If the current situation in the country persists, there is a risk that the institutions of state power will continue to deteriorate. It is becoming increasingly challenging to expect an impartial and objective evaluation of economic and civil cases in the Belarusian court system. It is unlikely that the Belarusian judicial system will immediately align with the principles of the rule of law as set out by the Venice Commission. However, by making systematic appeals before the Supreme Court as well as before person exercising the functions of the head of state, mainly concerning cases of the most common categories, it is possible to achieve the inclusion of at least two provisions in the resolution of the Plenum of the Supreme Court:
Eliminating or substantially restricting the application of non-court jurisdiction option allowing to dismiss a case, i.e. recognising inadmissible refusal of a court to consider a case, unless the law directly provides a different procedure of consideration;
Applying a literal interpretation of the law when deciding cases. The rule exists and applies as stated, without the increasingly common voluntary interpretation of “the rule is there, but it only applies to…”.
It is not realistic to expect the judiciary to perform beyond its current capabilities. Similarly, it is not realistic to expect an elderly rabbit to jump across the prairie with the speed and agility of a cheetah.
Way two, the optimistic one, is based on the effective functioning of three branches of government in the country. Each branch plays a role in maintaining the balance between them without allowing any one branch to abuse its position. This will facilitate the enforcement of the rule of law in the consideration of various kinds of issues and cases by the executive and judicial authorities.
Furthermore, to enhance the efficiency of the judicial system, including for the purposes of protecting the public’s right to a healthy environment, it seems prudent to introduce novelties in the following areas:
Court organisation:
- Deregionalisation. The establishment of court counties that do not align with the country’s administrative-territorial divisions. Let’s say, there is no Brest Leninski District Court or Malaryta District Court. Instead, there are two district courts: Brest Western and Brest Eastern. These courts cover the city of Brest and part of the Brest District. There is also the Kobryn County Court, which covers some districts in the region. Finally, there is the Baranavichy District Court, whose jurisdiction extends to some districts in the Brest, Hrodna and Minsk Regions. These are just a few examples of a possible transformation. The objective is to reduce corruption risks and avoid concentrating all regional power in the administrative centre. Furthermore, the process is designed to be convenient for participants, for instance, it is easier to go from Astravets to Maladzechna than to Hrodna. It is not a prerequisite though that each district centre should have its court.
- The establishment of county courts of appeal with jurisdiction over several courts of the first instance (e.g., the county court of appeal in Mazyr could hear cases of the county courts of Pinsk, Mazyr and Kalinkavichy in the second instance) would improve the judicial process.
- Introducing a case-grading system would help to determine the composition of courts. For instance, minor cases could be heard by a single judge without a recorded court session, in line with the approach taken by magistrates’ courts in Russia or small claims courts in the British system.
- Introducing judge/court specialisation. Forming chambers according to specialisation (criminal, civil, labour disputes, etc.). Previously, Belarus practised appointing special judges for administrative cases and enforcement proceedings. This could be revived in an expanded version, which would serve to improve the quality of the administration of justice.
- Abolishing the system of economic courts and establishing business chambers in county courts instead.
- The establishment and implementation of e-justice in certain categories of cases (e.g., writ proceedings) would allow parties to file documents and receive a decision through a court webportal.
- The demilitarisation of the prosecutor’s office (removal of uniforms, badges and epaulettes) and the introduction of the office’s status as an Public Attorney in court cases.
Procedural law and access to justice:
- Reforming the legal framework governing administrative procedures. Establishing a written (electronic) form of state agency or local government decisions, creating a system of obligatory right of appeal, including the possibility of appeal to a court. Including a clear indication in the decision of the procedure for its appeal, any unclearance is interpreted as a reference to review by the court.
- Review the Chapter 29 of the Civil Procedure Code (proceedings in cases arising from administrative law relations), following the example of foreign administrative procedure codes, but with the difference that no separate system shall be created and cases will be heard by the respective chambers/judges of the district courts.
- Abolition of the Commercial Procedure Code and transfer of its provisions to the Civil Procedure Code for business cases.
- Improvement the rights of non-governmental organisations (NGOs):
right to standing on behalf of the party in a case concerning the subject matter of the NGO’s activities, even if the party is not a member of the NGO;
to join as a third party in any court proceeding concerning matters related to NGO activities. This may be done at the NGO’s initiative, at the request of a party to the proceedings, or by court decision;
the legislation should enshrine the institution of actio popularis, which would give NGOs the right bring before court the cases for the protection of an indefinite number of persons, under the subject matter of the organisation’s activities. For example, environmental NGOs would be able to run a case to defend the right to a healthy environment.
The implementation of the above novelties would enable NGOs to operate effectively in order to defend the right to a healthy environment, to represent the interests of the public, and to do so using legal means.
Reform of the justice system will inevitably be necessary during the transition of authority, given that the current bodies have discredited themselves and it is unlikely that trust can be restored. The primary challenge at the outset will be the establishment of the judiciary, judicial self-governing bodies, and the qualification commission that addresses matters of occupational clearance and the imposition of disciplinary actions.
In the event of a pessimistic scenario, society should prepare for the functioning of military field courts, institutions of the occupation administration, and the development of vigilante justice. However, this will occur sooner or later, unless measures are taken today to restore the meaning of the court authority.
[1] The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was signed on 25 June 1998 in Aarhus, Denmark.
