In July 2018, the Spanish Supreme Court dismissed a lawsuit filed in 2017 by the environmental law NGO IIDMA challenging the Spanish Transitional National Plan (TNP) for large combustion plants. This judgement has been appealed to the Constitutional Court for failing to respect IIDMA’s right to an effective remedy (see analysis here). However, as an additional point of contention, the Court´s Judgment ordered IIDMA to bear the costs of the defendant (the Spanish administration), and the co-defendants, applying the “loser pays” principle.
In Spain, legal aid is available to members of the public, natural and legal persons (including NGOs), who lack sufficient financial resources to litigate. The main legal instruments governing legal aid are Law 1/1996 of Legal Aid and Royal Decree 996/2003 approving the Legal Aid Regulation. To benefit from legal aid under Legal Aid Law 1/1996, an NGO is required to provide evidence of insufficient means for litigation. However, the Aarhus Convention – which is directly applicable under Spanish law – provides in article 9.5 for an obligation to establish appropriate assistance mechanisms to remove or reduce financial obstacles or similar barriers to access to justice. In order to comply with this requirement, the Spanish Aarhus Law 27/2006 recognizes that NGOs that are entitled to litigate on certain environmental issues have a right to legal aid under the terms determined in Legal Aid Law 1/1996.
The Spanish Supreme Court and other regional courts have, in fact, provided NGOs with access to legal aid through a direct application of the Aarhus Law, without being required to prove insufficient means for litigation, despite the provisions of Legal Aid Law 1/1996. However, this interpretation is not applied systematically, and, in some cases, legal aid is denied by regional Legal Aid Commissions which argue that access to legal aid under the Aarhus Law is subject to prior compliance with Law 1/1996 requirements. Following the relevant case law, before the start of the TNP procedure, the National Commission for Legal Aid applied the Aarhus law to IIDMA. Thus, access to legal aid was granted because of IIDMA´s status as an environmental NGO and any consideration concerning its financial status was disregarded.
The Aarhus Convention Compliance Committee (ACCC) has found that Spain fails to comply with the requirement under the Convention that access to justice shall not be prohibitively expensive (article 9.4) in two cases: ACCC/C/2008/24 and ACCC/C/2009/36. Moreover, the sixth session of the Meeting of the Parties to the Convention, which was held in Budva in September 2017, requested Spain to urgently take measures to ensure the removal of all remaining obstacles to the full implementation of article 9.4 and 9.5 of the Convention with respect to legal aid for NGOs (Decision VI/8j).
Notwithstanding the above, in January 2019 the Spanish Supreme Court approved separately the costs assessment corresponding to the TNP case on behalf of each of three intervening parties, which are initially to be paid by IIDMA. In view of this, the claimant NGO filed an appeal challenging each Court´s decision approving the costs assessment, based on an infringement of IIDMA´s right to legal aid under Spanish Aarhus Law 27/2006, which should cover the trial costs imposed on the recipient.
The general rule under article 36.2 of Spanish Legal Aid Law 1/1996 is to exempt any recipient of legal aid from paying the trial costs unless it is proven that his/her financial situation improves within three years from the end of the judicial procedure. However, IIDMA argues that, according to relevant case law of the Spanish Supreme Court, the financial situation of NGOs which received legal aid under Aarhus Law 27/2006 should not be taken into consideration in exempting them from paying trial costs.
Consequently, IIDMA has asked the Spanish Supreme Court to annul its decisions approving the trial costs, arguing that the right to legal aid under the Aarhus Law is absolute – not subject to exceptions – and, as such, it must cover the trial costs of the recipient NGO. Should the Court instead adopt a restrictive interpretation, the economic costs resulting not only from the TNP case, but from environmental litigation in general, would clearly represent a barrier to effective access to justice for environmental NGOs in Spain. IIDMA expects the Spanish Supreme Court to follow the ACCC recommendations and confirm the broad scope of the right of environmental NGOs to legal aid in line with the very aim of the Aarhus Convention and Spanish Aarhus Law 27/2006.
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