Participation of environmental associations in the proceedings on offenses under the Act on the Protection of Nature and Landscape

Posted by: 15. 4. 2019
Update: 13/5/2024

In the case in question, the ecological association countered with a constitutional complaint against the conclusion of the administrative bodies and administrative courts that the ecological association cannot be a party to proceedings on an administrative offense (newly "proceedings on a misdemeanor") under the Nature and Landscape Protection Act.

In the opinion of the complainant, he fulfilled the conditions in terms of the provisions of § 70, paragraphs 2 and 3 of the Act on the Protection of Nature and Landscape for participation in the administrative proceedings in question, because (i) he had submitted a request to the competent administrative authority for information on all intended interventions and initiated administrative proceedings, during which the interests of nature and landscape protection may be affected according to the Act on Nature and Landscape Protection and (ii) he notified the administrative authority in writing in time of his participation in the given administrative offense proceedings.
For that reason, the complainant was convinced that he was entitled to participate in the given administrative offense proceedings, because according to him, it was an administrative proceeding in the sense of § 70, paragraph 3 of the Nature and Landscape Protection Act, in which the interests of nature protection may be affected and landscapes protected by the Nature and Landscape Protection Act.

However, administrative authorities and administrative courts (including the Supreme Administrative Court) held a different interpretation of the relevant provisions of the Nature and Landscape Protection Act, when, in their opinion, the phrase "in which the interests of nature and landscape protection protected under this Act may be affected" (contained in § 70 para. 2 of the Act on the Protection of Nature and Landscape), allows environmental associations to participate only in administrative proceedings in which it is to be decided whether or not there should be any intervention in nature and the landscape in the future, but not in proceedings expressing back to an intervention that has already taken place. The Supreme Administrative Court justified its restrictive interpretation of § 70, paragraph 2 of the Act on the Protection of Nature and Landscape with a general reference to the principles of administrative punishment, or on the procedural rights of accused persons.

Although the Constitutional Court did not rule out the possibility of the restrictive interpretation advocated by the Supreme Administrative Court regarding the participation of ecological associations in proceedings on administrative offences, it did not rule out the opposite interpretation either.

According to the Constitutional Court, the wording of Section 70, paragraph 2 of the Nature and Landscape Protection Act does not rule out that the concept of "administrative proceedings in which the interests of nature and landscape protection protected under this Act may be affected" may also be subordinated, depending on the circumstances, to administrative tort proceedings , especially if, as part of such a procedure, the nature protection authority first assesses the question of whether the conduct of the accused is prohibited by law. However, as the Constitutional Court noted, the procedural position of an ecological association as a participant in such proceedings on an administrative offense (which derives its status as a participant from the provisions of § 70, paragraph 3 of the Nature and Landscape Protection Act) is specific in the sense that the administrative body is obliged to object to it be dealt with materially only if they are related to nature and landscape protection in the sense of § 70, paragraph 2 of the Act on Nature and Landscape Protection (in the framework of proceedings on administrative offences, such objections could be related to the expert question of assessing the prohibition of interventions in nature and landscapes, but no longer such objections that relate to the question of determining the type and amount of the sanction for the accused).

In the case under consideration, the Constitutional Court thus came to the conclusion that the possibility of participation of an ecological association in proceedings on an administrative offense (or proceedings on misdemeanors) under the Act on the Protection of Nature and Landscape is not excluded without further ado.

It is important to emphasize that the Constitutional Court came to the above conclusion based on a Euro-compliant interpretation of § 70 paragraphs 2 and 3 of the Act on the Protection of Nature and Landscape in the context of the Aarhus Convention. As the Constitutional Court pointed out: "However, in connection with participation pursuant to § 70, paragraph 3 of the ZOPK, Article 9, paragraph 3 of the Aarhus Convention is important, the projection of which into the Czech legal order took place, among other things, by the inclusion of § 70, paragraph 3 of the ZOPK into the Czech legal order. According to Article 9(3) of the Aarhus Convention: "Each Party shall ensure that members of the public meeting the criteria, if any are established in national law, have access to administrative or judicial procedures to challenge actions, acts or omissions by private persons or public authorities which are contrary to the provisions of its national law relating to the environment'.

The Constitutional Court therefore stated that: "It is therefore necessary to take into account the status of the Aarhus Convention [see Article 10 of the Constitution] from the point of view of its application priority over the law." Therefore, if it is possible to interpret national norms in several possible ways, the interpretation that meets the requirements of the Aarhus Convention takes precedence."

As the Constitutional Court highlighted the role of the Aarhus Convention as a source of interpretation for the interpretation of the provisions of Section 70, paragraphs 2 and 3 of the Act on the Protection of Nature and Landscape, in its ruling, while opposing with its interpretation the growing tendency to limit the possibilities of participation of environmental associations in administrative proceedings in general, it will be interesting to observe , how the Constitutional Court will deal with the proposal of the senators of the Parliament of the Czech Republic (filed at the Constitutional Court under file no. Pl. ÚS 22/17) to cancel the provisions of paragraph 3 sentence one in the words "according to this law" in § 70 of the Nature Protection Act and landscapes and provisions of paragraphs 9, 10 and 11 in § 4 of Act No. 183/2006 Coll. (Construction Act), as amended by Act No. 225/2017 Coll. As is known, amendment No. 225/2017 Coll. significantly limited the authority of ecological associations as representatives of the public to become participants in land and building proceedings in particular. However, such a significant limitation of the possibility of participation of ecological associations in the framework of administrative proceedings appears to be in conflict with the objectives of the Aarhus Convention.