Introduction

The idea of human rights as fundamental rights of every individual is certainly one of the most powerful ideas of our modern age. Since the American and French revolutions, human rights have been the strongest link between law and democracy. They played a crucial role when defining notions of constitutionalism and the rule of law.

While some human rights were made famous by national mottos like the French liberté, égalité et fraternité, the other human rights have not attracted such attention. Generally, substantive human rights were discussed and appreciated more than procedural human rights. Some attention of the public, media, art and literature was given to the rights of the accused in criminal proceedings, such as the right to professional legal defense and the privilege against self-incrimination. These rights attracted considerable attention among scholars of comparative procedural law. Civil justice, on the contrary, was never considered so exciting - yet, without an effective and well-balanced set of procedural rights, the substantive rights and freedoms of almost any business and individual would not enjoy effective protection before the civil courts of law.

Based on the wish to reopen an international comparative discussion on fundamental notions of civil procedure, this book offers a number of insights in procedural human rights from different jurisdictions and different angles of view. While some previous studies focused on Northern Europe, many of the authors in this book come from Southern and Eastern Europe (e.g. Romania, Russia, Slovenia, Croatia, but also from outside Europe, e.g. South Africa), areas where a common understanding of procedural human rights may be an even more pressing necessity. Some initial premises are however shared by all contributors to this book.

First, the general background of the contributions collected in this book is the finding that various developments in the contemporary world do not favour procedural human rights. Two major challenges to both global and European justice systems have been particularly significant in the past decade: the economic crisis and the ever-increasing frequency of emergency situations. The economic crisis brought policies of austerity, which limited the available judicial resources and made recourse to judicial proceedings more difficult and expensive.

ABSTRACT

However we characterise normative “effectiveness”, international environmental law must be adaptable and capable of evolving to address new challenges and pursue ever-higher standards of environmental protection. Conventional regimes tend to be based on framework agreements, which institutionalise cooperation by establishing institutional machinery capable of elaborating more detailed environmental norms and standards. Older conventional instruments may also be understood in the light of current environmental standards and practices due to the “evolutionary interpretation” envisaged under the Vienna Convention. The almost universal participation of States in key global environmental treaties, as well as the pervasive influence of environmental norms on non-environmental treaty provisions, means that this “systemic integration” can promote more coherent and effective conventional regimes for environmental protection. In addition, a relatively relaxed approach is taken to recognition of the closely related customary rules, upon which environmental treaty rules tend to be based, due largely to the powerful law-making effect of a wealth of declarative instruments which rationalise the general principles of law relevant to environmental protection.

Quite apart from the traditionally recognised sources of international law, international environmental law relies heavily on atypical normative forms including, in particular, non-binding soft law instruments, which promote voluntary compliance, facilitate bilateral and multilateral environmental negotiations and provide a basis for the development of more specific binding norms. The rich infrastructure of intergovernmental-specialised agencies and programmes also plays a key role in providing the technical expertise required to achieve scientific consensus. International environmental law also tends to be procedurally sophisticated, requiring an open participative approach, especially where the environmental values concerned overlap with human rights requirements, thus ensuring that it can respond effectively to evolving societal expectations.

Finally, this field of international law is increasingly characterised by multilevel governance as well as by new forms of rules, standards and procedures emerging from non-traditional actors involved in the law-making process, suggesting a fluidity in the formation and evolution of international environmental rules, something which enhances their technical currency, broad legitimacy and applicability and, thus inevitably, their effectiveness.

INTRODUCTION

As a new body of rules which has emerged very rapidly in recent decades, the “effectiveness” of international environmental law has long been a matter of concern, causing commentators to focus on various aspects of normative design and implementation.

Introduction

Russia has been working continually to improve the functioning of its judicial system and the administration of justice for more than twenty years. Today we are seeing a new level of judicial reform that is a topical subject much discussed among the members of the Russian legal community: specifically, the judicial reform of commercial litigation – ‘arbitrazh’ –, which underwent crucial changes in 2013- 2014.

It all started in June 2013 when President Vladimir Putin proposed a reorganization of the Higher Commercial Court of the Russian Federation during the St. Petersburg International Economic Forum. Just a few months later, in October the president introduced a bill to the state Duma (the lower house of the Russian Parliament or Federal Assembly) according to which the Higher Commercial Court would cease to exist and its jurisdictional powers pass to the Supreme Court of the Russian Federation, thereby turning it into a sort of super Supreme Court.

Some lawyers spoke out vigorously against the reform, describing it as confusing, pointless and, generally speaking, dangerous. Others said that arguments opposing the reform went beyond criticism and were merely falsehoods intended to block judicial reform efforts. The debate continues today.

The Court System Issue

The new judicial reform debuted with Bill No. 352924-6 sent by the president to the state Duma for consideration and aimed at ensuring the uniformity of the Russian court system and legal practice. The official title of the bill, which proposed amending the Constitution of the Russian Federation, was ‘On the Supreme Court of the Russian Federation and the Prosecutor's Office of the Russian Federation’. However, this title did not reflect the essential part of the bill that in reality entailed the abolishment of the country's Higher Commercial Court.

The Constitution Amendment Act on the Supreme Court of the Russian Federation and the Prosecutor's Office of the Russian Federation (the Constitution Amendment Act) was passed by the state Duma on 22 November 2013 and just a few days later by the Federation Council (i.e. the upper house) on 27 November. In February 2014, after the amendments had been approved by the legislative bodies of at least two-thirds of the federal subjects (constituent entities) of the Russian Federation, the law was enacted.

ABSTRACT

In this contribution, we focus on the communication between environmental inspectors and public prosecutors. We model the interaction between both enforcement actors using a sender-receiver model that incorporates the cost factor and the objectives function. The model allows us to identify possibilities by which to optimize the information exchange at this crucial stage of the enforcement chain. We comment on the increasing specialization of public prosecutors in Europe, and in other countries, on the crucial role of effectively written notices of violation and on the issue of strategic information sharing.

INTRODUCTION

Environmental law enforcement is a responsibility shared by a variety of actors. Consequently, many formal and informal interactions between different enforcement actors occur. Police forces, specialized inspectorates, public prosecutors, criminal courts and administrative courts all play a role within countries’ environmental administrations. Collaboration between countries is a necessity in the fight against organized crime, cross-border pollution and illegal waste transports.

In this study, we focus on the interaction between environmental inspectors and public prosecutors, specifically the communication of information on environmental offences by the inspectors to the prosecution. This interaction is crucial for the enforcement chain and, thus, for environmental policy at large. It triggers the sanctioning process within the criminal sanctioning track. Criminal sanctioning comprises the hard core of law enforcement, next to administrative and civil sanctioning.

The so-called Eco-Crime Directive, which had to be implemented by the end of 2010, has secured the possibility of criminal sanctioning for the enforcement of serious environmental offences in each EU Member State, whatever its legal tradition in the sanctioning of offences at large and in environmental offences more specifically.

We look at the information exchange that occurs when environmental inspectors communicate official records of offences detected while performing compliance monitoring duties. In most European countries, and in many other countries besides, the environmental case load of public prosecutors is mainly built up through such official records from inspectorates and police forces with a little more extensive or a highly developed level of specialization in environmental compliance monitoring. A factor contributing to this in EU Member States is the rather recent and growing amount of EU legislation on environmental inspections.

Introduction

In civil law jurisdictions case law has traditionally not been recognised as a formal source of law. In Slovenia, Article 125 of the Constitution is often invoked in this context, according to which the judges are independent and are, in their decisionmaking, bound (only) by the Constitution and laws, not by judicial decisions reached in other similar cases. The same follows also from Article 11 of the Courts Act, which explicitly provides that a court is not bound by the legal positions of another court. On the other hand, it is acknowledged in legal writing that case law plays a co-creative role at least. It is argued that application of the law must be consistent and uniform, and that in a state governed by the rule of law we justifiably expect to be treated as others are treated and that we can rely on previous decisions in comparable cases. Therefore, courts must consider the ‘argument from precedent’, as one of the interpretative arguments, when they decide cases and reason their judgments. Although falling short of formally recognising the binding nature of precedents, the practical importance of case law is thus firmly recognised in modern civil law jurisdictions. Quite indicative is Opinion No. 11 (2008) of the Consultative Council of European Judges (CCJE) on the quality of judicial decisions, which stipulates that ‘in civil law countries, they [judges] will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law’ (para. 48). This statement can be perceived as an expression of generally accepted standards.

On the legislative level, a very powerful recognition of the importance and relevance of case law in Slovenia was achieved through the reform of the system of access to the supreme court, implemented in 2008 (which was discussed in an earlier volume in this series). The introduction of the ‘leave to appeal system’ emphasised the public function of the decision-making of a supreme court, which consists in safeguarding and promoting the uniformity of case law, the development of law and offering guidance to lower courts, thus ensuring predictability in the application of the law. The introduction of these criteria for granting leave to appeal implies that the Court's resolution of the matter will generally be accepted beyond the scope of the individual case.

The adverse environmental impacts of projects supported by Multilateral Development Banks (MDBs), such as the World Bank or its regional counterparts, have been denounced for decades. The domains in which MDBs operate logically bear environmental and social risk which can be significant: development of transportation, of agribusiness, of energy sources, of extractive industries etc. This includes projects to develop highways, airports, dams and reservoirs, irrigation systems, wind farms, coal power plants, mining, to reorganize land management, to reform the legal framework related to land tenures or else forest concessions etc. Such projects may entail changing land use patterns and natural habitats, or else cause disruptions affecting the water cycle, biodiversity, soil, forests … Not to mention the human impacts: ‘involuntary’ (in the language of MDBs) and sometimes unwanted resettlement, destruction of cultural or spiritual heritage, loss of livelihoods, forced evictions etc. The poor environmental record of the World Bank Group is richly documented, including by the World Bank itself, thanks to the reports of the Operations Evaluation Department, later transformed into the Independent Evaluation Group (IEG). For example, the 2001 OED Review of the Bank's Performance on the Environment notes that:

In 2008, the IEG finds that:

ABSTRACT

Even though some Brazilian and foreign companies have been sued for environmental damage, due to oil spills which occurred under Brazilian jurisdiction, the system based on civil liability does not provide proper reparation for environmental damage. In this context, extrajudicial instruments, such as the Conduct Adjustment Agreement (TAC), can contribute to improving the prevention and reparation of environmental damage. This chapter will focus on the analysis of its contribution to circumventing civil liability ineffectiveness by taking the increasing importance in the use of TACs on environmental matters into account. Keywords: Civil liability, extrajudicial instruments, “Conduct Adjustment Agreement”, environmental damage, oil spill

INTRODUCTION

The exploitation of oil in Brazil has already caused serious environmental damage in States such as Rio de Janeiro, São Paulo, Paraná, Espírito Santo and Bahia. A great part of this damage is caused by oil spills related to the activities that occur on the offshore platforms. In these cases, civil liability has not sufficiently contributed to the prevention and to the reparation of environmental damage. Other public and private instruments should be used in order to achieve greater effectiveness in environmental protection. Extrajudicial instruments, such as the Conduct Adjustment Agreement (in Portuguese Termo de Ajustamento de Conduta – TAC), widely used in Brazilian Law, can help to improve environmental protection. Therefore, it is important to briefly highlight the context of oil exploitation in Brazil, the limits of the Brazilian environmental liability system to repair damage caused by oil spills and the role Conduct Adjustment Agreements may play in this scenario.

Oil exploitation is a central economic activity in Brazil, which started in the 1930s and represents, along with the gas sector, 13% of the Brazilian Gross Domestic Product (GDP). Actually, there are around 135 oil platforms fixed, floating and functioning in Brazilian maritime space. Furthermore, there are at least 52 ships transport oil or derivatives. In order to prevent environmental and social damage, the oil sector has to comply with Brazilian security norms. Simultaneously, it is expected that Brazilian State control be done efficiently, in a manner based on norms and on a precautionary approach.

However, since 1960, many oil spills have been reported in Brazil.

Introduction

The presumption of innocence is a characteristic element of modern European law. The presumption has a remarkably long history and it is recognised in Anglo- American jurisdictions, Germanic jurisdictions, Latin jurisdictions and Scandinavian jurisdictions. In several European countries, the presumption of innocence has the privilege of being part of the constitution. It is also included in several international conventions on human rights, for instance the International Covenant on Civil and Political Rights, Article 14(2), the European Convention on Human Rights (ECHR), Article 6(2) and the Charter of Fundamental Rights of the European Union, Article 48(1).

Even though the presumption of innocence primarily concerns criminal cases, and the scope of Article 6(2) ECHR is limited to criminal offences, the European Court of Human Rights (the Court) has applied several aspects of Article 6(2) in civil cases under domestic law. Firstly, the paragraph entails a prohibition against a state official making a statement implying that a person is guilty of a criminal act before he has been convicted in a final verdict. This aspect of Article 6(2) is applicable in civil cases, for instance when a court orders a person to pay compensation because of an action of which he has previously been acquitted in a criminal case. Acquittal in the criminal case does not preclude civil liability, but the presumption of innocence might be infringed if the civil judgment includes a statement imputing criminal liability. Secondly, the paragraph contains a requirement concerning the burden of proof and the standard of evidence. This aspect of Article 6(2) is applicable in a civil case if the case involves a ‘criminal offence’ under the Convention even though it is not a criminal case in the domestic system, a combination made possible by the autonomous concept of criminal offence developed by the Court. Cases that are civil under domestic law and criminal under ECHR typically concern administrative sanctions, which are sanctions imposed by a public body on an individual or a company because of an illegal act carried out by that individual or company. Such sanctions are usually a fine, revocation of a licence or some other economic sanction.

The subject of this contribution is the requirements Article 6(2) sets for the burden of proof and the standard of evidence in cases that are civil under domestic law.