Environmental matters and the relevant regulatory framework, within the Republic of Cyprus

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Principally, most environmental matters are subject to the procedure for administrative recourses. Nevertheless, some environmental issues are decided under criminal or civil jurisdiction, e.g. the Law for Crimes against the environment Number 22(I)/2012 and Law on Environmental Liability, Number 189(1)/2007. In criminal procedures, everyone is entitled to report criminal acts (e.g. misuse of power by certain authorities) to the prosecutor. They can participate and bear witness at the proceedings. Remedies against court decisions are restricted to the prosecutor and the accused. In order to seek a judicial remedy, the complainant must have a legitimate interest as defined in Article 146 of the Constitution. This right must be exercised within 75 days of becoming aware of the event complained of.

 

Three new Laws recognize the right of NGOs to complain against certain administrative acts. They are the Law of EIA (Number 140(I)/2005), the Integrated Pollution Prevention and Control (IPPC) Law Number 56(I)/2003 and 15(I)/2006 and the Environmental Liability Law Number 189(I)/2007. The court in administrative proceedings can examine from its own motion matters of general interest such as time limit, executory nature of the act, competence of the organ, legitimate interest. The court cannot examine on its own motion constitutional issues and violation of fundamental rights. These constitutionality issues must be specifically pleaded.

 

Access to Information Cases

 

Under Article 10(I) of the Access to Environmental Information Law Number 119(I)/2004, a hierarchical appeal maybe made (e.g. letter) within 30 days to the Minister of a department which has failed to respond or responded inadequately. This does not preclude the claimant from exercising his/her rights under the Constitution (Article 146) or from applying to the Ombudsperson for a statement of opinion. Refusal of requests for information must be justified and in writing (Article 8(8) of the law), and must include information regarding the judicial review procedures provided for in Articles 10 and 11.

 

Any person may ask for access to environmental information by written letter and without needing to show any special interest. For those seeking remedy against refusals the procedure is again straight forward. It could involve a hierarchical appeal to the Minister responsible for the department which is refusing the information. If the claimant decides to go to court it should be done within 75 days of the refusal and he/she would need to show that, viz. the procedural rules that would apply are the provisions at Article 10 of the Law. The conditions under Article 146 of the Constitution were would also need to be complied with, i.e. the claimant should show a personal and legitimate interest.

 

The administrative file containing all the information is filed before the court and it is examined by the judge before taking the decision. The Court has the power and responsibility to regulate the production of evidence in accordance with the requirements for the due discharge of its competence under Article the Court has power to summon any person to give evidence or produce documents for the purpose of enabling the court to come to a just decision in the cases.

 

Access to Justice in Public Participation

 

There are no special procedures for public participation in environmental matters, but a number of sectoral laws (e.g. zoning, IPPC, ΕΙΑ) provide for public notification, invitation of comments and public participation in an open deliberation. Unless otherwise provided in a specific law there is normally no superior administrative body to which an appeal would be made against administrative decisions. First instance administrative decisions can and are taken directly to court, although it would be usual in practice to appeal first either to the Minister responsible or to the Ombudsperson or both.

 

If so, provided in the law, administrative decisions can be subject to review by a higher authority. If the claimant exercises this right, the time within which to file recourse is suspended till the administrative process is completed. If there is no provision in the law the applicant must file its recourse directly to the court. If a hierarchical recourse is provided by the law, the applicant may choose to wait for the outcome and then file the recourse.

 

Applying to the ombudsman will not be considered as a hierarchical recourse and the outcome of it is not subject to review by the court and the time limit will not be suspended pending the outcome of the decision of the ombudsman. The legality of the acts or omissions of any organ, authority or person exercising any executive or administrative authority is reviewed and, they are either annulled (in part or in full) or confirmed. The Supreme Court cannot go into the merits of the decision under review and resolve the matter with a decision, on the substance, of its own. The court cannot go into the scientific merits of a finding of a technical nature, it can only examine whether in adopting such finding the administration has acted in a proper manner from the point of view of constitutionality, legality and excess or abuse of powers.

 

Plans and other decisions defining the use of space can be reviewed in Court following an appeal from a party with a legitimate interest as per Article 146 of the Constitution, the EIA or the IPPC laws. The Court examines whether the administration has acted in a proper manner and has the power and responsibility to regulate the production of evidence in accordance with the requirements for the due discharge of its competence under Article 146, including the summoning of any person to give evidence or to produce documents for the purpose of enabling the court to come to a just decision in the case.

 

The hearing is conducted in public. Each party submits its case in writing and may, with the leave of the Court, call witnesses or produce evidence (if necessary) in support of its case. The applicant, the respondent and the interested parties are the only ones that have a right to participate in the hearing. Courts review the procedural and the substantive legality.

 

There are no particular provisions in the EIA law for review of screening decisions. It is open however, to NGOs under Article 25(1)(c) to appeal with reference to Article 146 of the Constitution, if dissatisfied with the environmental permit granted by the Environment Department. There are no particular provisions in the law for judicial or other review of scoping decisions which, in any case, would form part of the process, not a final decision. As preparatory acts they cannot be challenged separately but can be reviewed as part of a final decision.

 

EIA decisions/authorizations can be reviewed in court within the provisions of Article 146 of the Constitution and Article 25(1) of the EIA law. Participation in the public consultation phase is not a prerequisite for acquiring standing before the Courts. Standing is derived from the legitimate interest of the party. There are no special provisions for injunctive relief in EIA procedures. Although available within the standard judicial procedures, it is a remedy very rarely granted to private persons and normally only on payment of a substantial deposit into court. Procedurally the Court, may, at any time, make a provisional order for injunctive relief without judging the case on its merits, if the justice of the case so requires either on the ground of urgency or of other special circumstances, be made without notice and upon such terms as it may be deemed fit in the circumstances: Flagrant illegality and irreparable damage are necessary prerequisites to the grant of a provisional order which is to be decided independently of the merits of the main recourse.

 

Review of IPPC decisions is possible under with the regular procedures available to persons satisfying Article 146 of the Constitution or NGOs meeting the requirements of Article 9c (1) of the IPPC Law. Standing before the court in IPPC procedures is not dependent on participation in the public consultation phase, but is derived from the existence of a legitimate interest by the party. In other respects, revision of IPPC decisions is the same as was mentioned regarding EIA decisions.

 

Access to Justice against Acts or Omissions

 

Although the relevant EU directive (on Environmental Liability 2004/35/EC) has been transposed into Cyprus law (Law Number 189(I) of 2007), a general civil liability scheme does not exist so far, nor has this law been tested in court. Actions under this law could impose an ‘administrative penalty’ for ‘restoration of Nature’ of up to € 200.000 and an additional penalty up to €5000 for each day the violation continues. Actions against individuals could also be brought between individuals/legal entities under the general civil liability causes of action such as nuisance or negligence. Both damages and injunctive remedies can be sought.

 

Claims against state bodies can be submitted directly to the Supreme Court under Article 146 of the Constitution provided bodies against which the claim is made are acting in an administrative, and not a regulatory, capacity. Claims would be for annulment of an act and damages or in the case of an omission for an order of mandamus (to perform a certain act) and damages, if suffered. If the case succeeds the party may then apply to the district court for damages. The competent authority under the Environmental Liability Law (Number 189(I)/2007) is the Environment Department (Article 2) unless the Minister of Agriculture, Natural Resources and Environment issues an order nominating another or an additional competent authority, depending on the situation and the damage that has occurred.

 

A request for action can be filed by any natural or legal person including an environmental NGO (Article 14(I) of the law), if likely to be affected or having a legitimate interest. However, this request cannot be made in the case of future damage. The request is submitted in writing to the Environment Department accompanied by all necessary material to substantiate the complaint. According to Article 17 of the Environmental Liability Law, a court review of the decisions taken by the competent authority would fall within the requirements of Article 146 of the Constitution. One would file recourse under Article 146 either against a failure of the competent authority to take action following a request for action, or against inadequate measures taken to restore a habitat(s) or species.

 

Other Means of Access to Justice

 

Other remedies available in environmental matters are applications to either the Ombudsperson or the Environment Commissioner, though neither have executive power, so applying to either, even if they produce a favorable statement, might not always produce a remedy. The office of the Ombudsperson was established in 1992 to protect citizens’ rights when affected by public administration decisions which are contrary to the law or not in accordance with the proper exercise of administrative authority. An investigation or inspection undertaken by the Ombudsperson does not suspend any procedure or deadline applicable within the exercise of a legal action or hierarchical appeal. Any person, including non-Cypriots within the Republic, or an NGO, may apply to the Ombudsperson. However, the decision of the Ombudsperson is not binding on the administrative authorities. Quite often the decision is observed, but this is not always the case, especially when it involves recommendations to demolish an illegality or to withdraw a development license.

 

The Commissioner of the Environment is appointed by and reports to the President. The Commissioner may submit proposals and recommendations to the relevant Ministries for the implementation of environmental policy and legislation. In specific cases of serious effects on the environment or blatant infringements, the Commissioner may initiate investigations and inspections of the alleged infringements and recommend solutions. Additionally, he can provide research guidelines to the appropriate service of a Ministry and ask that a report be submitted. All citizens including NGOs, can address the Commissioner for the Environment, even though his/her recommendations are not binding on any authority.

 

Public prosecutors acting under the office of the Attorney-General have the duty of preparing the pleadings and bringing criminal offences to court. Depending on the offence, the Factory Inspectorate of the Ministry of Labor or the Game Wardens of the Game Fund will play an active role in the prosecution. Private criminal prosecution is available under the law (not specifically for environmental offences) but not widely practiced.

 

Complaint handling mechanisms include:

 

Complaints to the Ombudsperson or the Environment Commissioner

 

Complaints to the Minister responsible for an offending action/decision either in the mode of a formal hierarchical appeal or less formally

 

Complaints to a local authority.

 

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