Fair Trial and Expert Judges – Towards Environmental Justice? +

2.1 Independence and Impartiality

Article 6 (fair trial) of the ECHR sets the boundaries and cornerstones for proceedings in national courts. 6 The case law of the European Court of Human Rights concretises Article 6. The principle of a fair trial is also essential in administrative courts. 7

Many of the different case types dealt with by the Finnish administrative courts fall under the scope of Article 6, as they are linked to the determination of civil rights and obligations. 8 The civil limb of Article 6 can be applied to Finnish appeal processes in environmental cases. 9

According to Article 6, ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. Thus, the independence and impartiality of Finnish expert judges in environmental cases must be examined. On the other hand, it is interesting to evaluate whether the aspects of independence and impartiality support the idea of experts as judges.

According to the European Court of Human Rights, justice must ‘be seen to be done’. 10 Judges’ independence and impartiality are basic elements of the rule of law. 11 Nevertheless, making a clear distinction between these two elements can be challenging. 12 Independence has strong connections with trias politica, whereas impartiality concerns a certain court or judge in a certain case. Impartiality can be ascertained by a subjective or objective test. 13

Are the expert judges compatible with the Convention? Case law, at least, shows that the European Court of Human Rights has understood different national solutions. The composition of a court or council can be organised in various ways. According to the Strasbourg Court, even ‘––the part-time judiciary in general can be framed so as to be compatible with Article 6’. 14

The court even considered, in the case of Le Compte, Van Leuven and De Meyere, that the appeals council in Belgium could be composed of both medical practitioners and members of the judiciary: ‘The presence ––of judges making up half the membership, including the Chairman with a casting vote ––, provides a definite assurance of impartiality and the method of election of the medical members cannot suffice to bear out a charge of bias ––.’ 15 Lay assessors were also accepted in the Swedish Labour Court; the Ab Kurt Kellerman case did not violate Article 6 §1. 16 Moreover, in the case of British-American Tobacco Company Ltd., the court noted that in a technical domain, such as the granting of patents, using an adjudicatory body rather than traditional courts may be justifiable. 17

The case of Sara Lind Eggertsdóttir showed that the composition of the Icelandic State Medico-Legal Board (SMLB) was problematic. Some members of the board worked at the very hospital at which the medical negligence had occurred. The Supreme Court of Iceland had appointed the SMLB to provide an expert opinion. The European Court of Human Rights noted that ‘––the opinion of an expert who has been appointed by the competent court to address issues arising in the case is likely to carry significant weight in that court’s assessment of those issues’ and furthermore that ‘––the Supreme Court’s objective impartiality was compromised by the SMLB’s composition, procedural position and role in the proceedings before it.’ 18

What conclusions can thus be drawn from case law? First of all, it is clear that the Finnish expert judges in environmental cases have to be independent and impartial in order to fulfil the requirements laid down in Article 6 §1. Secondly, the European Court of Human Rights seems to be rather open-minded when it comes to national needs and the composition of courts. It even recognises that an adjudicatory body might be needed in a technical field. The Court seems to understand the complexity of certain cases. Moreover, the objective impartiality of a national court can be compromised for various reasons when a board gives an expert opinion.

It is obvious that the composition of the Vaasa Administrative Court with its environmental expert judges is not itself a contradiction to the requirements of independence and impartiality laid down by Article 6 §1. On the contrary, the different aspects of these two elements actually support the idea of experts as full-time judges. The part-time expert judges having connections with industrial companies, authorities, the parties of the case, or the bodies providing expert opinions to the court would be much more problematic. Environmental justice requires that the courts’ needs for expertise are met so that the impartiality and independence of the court are promoted.

2.2 Adversiality

In addition to impartiality and independence, another important aspect of Article 6 §1 of the ECHR is adversiality. 19 Whether the system of environmental expert judges leads to fundamental procedural problems has been questioned. 20 The expert judges have sometimes, at least in the doctrine, been suspected of giving expert knowledge to the lawyer judges in a way that the case parties have no opportunities to comment on it. This risk has led researchers in the field of procedural law in particular to support the idea of external experts who merely present a report to the court and who can also be heard orally by the court. 21

The broad case law of the European Court of Human Rights builds the cornerstones of adversiality. One of the most essential elements is equality of arms, 22 which, in the sense of a fair balance and a reasonable opportunity to present the case, also applies to civil rights and obligations. 23 Some of the case law of the European Court of Human Rights concerning expertise is linked with medical knowledge and an expert who provides the national court with a written report. 24 Any conclusions must therefore be drawn with caution when Finnish environmental expert judges are involved. Unlike the medical members of other courts, the environmental expert judges do not provide the national court with any kind of written analysis or report. Instead, they participate in the everyday activity of the Vaasa Administrative Court, in other words, solve environmental cases with the lawyer judges.

An interesting case, Markko vs Finland (2005), offers some guidelines. The Finnish Insurance Court has medical members who work part-time alongside the lawyer judges. In this case, Markko complained that the principle of equality of arms was not respected. He claimed not to have had the opportunity to acquaint himself with the opinion of the Insurance Court’s medical member. He invoked Article 6 (fair trial) and Article 13 (effective remedy) of the ECHR. The Finnish government argued that a medical member of the Insurance Court examines the medical evidence and prepares a preliminary commentary. According to the government, the position of a medical member equals that of a judge, and their commentary is not supposed to be public.

The court in Strasbourg agreed: ‘––there is no indication that the refusal to disclose to the applicant an opinion of the medical member of the Insurance Court, whose opinions form part of the internal deliberations of that court, deprived the applicant of a fair and effective opportunity to put forward his own case or to answer the arguments of the other party. There is in the circumstances no appearance of a violation of Article 6 §1––’. 25 As a result, the European Court of Human Rights unanimously declared Markko’s application inadmissible.

The Markko case shows that medical members are seen as similar members of the Finnish Insurance Court to lawyer judges; at least when applying certain aspects of Article 6. In contrast to the medical members of the Insurance Court, the environmental expert judges do not give a separate commentary to the court. This makes them less problematic in terms of Article 6. The environmental expert judges converse with the other judges, mostly during the internal sessions of the court, participate in writing the court’s decision, or write a memorandum, like the referendary of the case. These actions are also a part of the internal deliberations of the court.

Fair trial requirements demand that the parties have equal and sufficient opportunities to become acquainted with all the material submitted to the court. The same principle applies to the material the court might have acquired itself. 26 The European Court of Human Rights stated in the case of Krčmář and Others vs the Czech Republic that ‘––in itself, the gathering of additional evidence by a court ––is not incompatible with the requirements of a fair hearing ––The principle of equality of arms, which is one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage vis-à-vis its opponent.’ As the evidence collected by the national court was not communicated to either of the parties, the equality of arms was not violated. However, this was not enough. The Strasbourg Court regarded Article 6 §1 from a broader perspective: the parties must be able to obtain knowledge of and comment on all evidence. 27

Adversiality and equality of arms are linked to the idea of a fair balance between parties. This is especially important in Finnish administrative courts, where the public authority is always a party of the case. 28 Even then, a balance should be reached. The governmental or municipal authorities have no privileges in the administrative courts. 29

The case law in Strasbourg is significant when we consider the Finnish system with its environmental expert judges. Still, it is essential to remember some basic differences. First of all, the role of the medical expertise of the Insurance Court, differs from the role of engineering and natural science expertise in environmental cases. Secondly, in environmental cases the expert judges do not give a written commentary to the other members of the court.

According to case law, adversiality does not seem be a fundamental obstacle for expert judges. 30 The European Court of Human Rights has generally been willing to understand the growing importance of environmental aspects and environmental protection. 31 Consequently, the environmental expert judges per se are hardly at odds with Article 6.

In concrete cases, some questions concerning adversiality might still arise. However, in order to establish an infringement of Article 6 §1, one would have to prove, practically, through the argumentation used in the national court judgment, that the expert judge gathered additional material for the court without communicating it to the parties.

The reformatory character of the Finnish administrative process can even cause challenges from the fair trial point of view. In environmental cases, the Finnish administrative courts and authorities can use almost the same kind of discretion. This makes the reformatory process possible, and the courts can alter the decisions. At the same time, the parties, and their opportunities to participate in the process, should not be forgotten. The changes, usually enabled by the expert judges, should never come as a total surprise. The modifications should to some extent be based on the demands of the parties communicated in the trial.

3.1 Starting points

The environmental expert judges promote access to justice. The different aspects of traditional access to justice are helpful tools for achieving environmental justice. However, the concept of access to justice has various layers.

First, access to justice can be understood in a broad sense, as, for example, organisational issues and the need of environmental courts. Second, access to justice can be seen in a traditional way; the main issue being access to a court. Third, in the narrowest sense, access to justice is linked to the procedural aspects of court proceedings: can the court examine both legal and substantial issues? Expert judges in environmental cases are connected to the broadest and narrowest sense of access to justice.

The instruments connected to a fair trial and environmental litigation emphasise the different sides of access to justice. The Aarhus Convention is linked to different aspects –access to a court and how the courts work in practice. The ECHR emphasises both access to a court and access to justice. The EU law lays down various procedural requirements for national courts. The following parts of this article elaborate on the access to justice presented in these instruments.

3.2 Aarhus Convention: Different Aspects of Access

The most essential international instrument that defines access to justice in environmental cases is the Aarhus Convention. The Aarhus Convention stands on three pillars: access to information, public participation, and access to justice. The Convention has also influenced EU law, 32 although the interaction has been mutual. 33

The Convention binds together environmental rights and human rights by its three pillars. 34 Substantive and procedural viewpoints are combined, strengthening the legitimacy and quality of the decisions made at the national level. 35

The third pillar of the Aarhus Convention concerns access to justice and defines the tools needed to overturn a false decision made by an authority. 36 According to the Convention, national courts must examine both the substantive and procedural legality of an environmental decision. This requires expertise. From the expert judges’ point of view, the most important parts of the Aarhus Convention are Article 9 (access to justice), §2, 3 and 4. 37

According to §2, it must be possible to challenge the substantive and procedural legality of decisions with reference to Article 6 (Public Participation in Decisions on Specific Activities) of the Convention. For example, one should be able to challenge permit conditions that do not meet certain technical standards. 38 In order to scrutinise such conditions in detail, the court needs expertise.

The coverage of §3 is broader than that of §2: it concerns access to justice in all cases in which the national environmental legislation has been breached. However, §3 is not as clear as §2. It does not demand that both substantive and procedural legality should be challenged. 39 Despite this, the scope of the review defined in §3 is not limited to either procedural or substantive legality. It should be the same as that defined more clearly in §2. 40

The Aarhus Convention deals with the two narrowest senses of environmental access to justice. It requires granting access to a court. Moreover, the scope of the review at the court should be wide and thorough. The Finnish system of environmental expert judges fulfils these requirements.

The Aarhus Convention is built on the idea of national procedural autonomy 41 and does not actually require a system with expert judges. Different court systems can also fulfil the requirements of the Convention. However, as examination of the procedural and substantive legality of the decisions by authorities with expertise can be difficult in a court without expert judges, the viewpoints and arguments arising from the Aarhus Convention support a system with environmental expert judges.

3.3 ECHR: Access to a Court, Access to Justice

The European Court of Human Rights has used Articles 6 (fair trial) and 13 (effective remedy) 42 of the Convention to develop the concept of access to justice. According to Article 6, everyone is entitled to a fair and public hearing within a reasonable time. It must be possible to appeal decisions made by public authorities. 43

Article 8 (right to respect for private and family life), which is often used by the Strasbourg Court in environmental cases, does not cover procedural aspects. 44 Thus, the Court has added procedural elements when applying Article 8. 45 The same applies to Article 2 (right to life), which is often also used in case law concerning the environment. As Article 2 is about the right to life, the procedural requirements linked to it are particularly heavy. 46

According to the Convention and to case law, the most traditional aspect of access to justice is that of access to a court. 47 Other viewpoints have also arisen. Access to justice can limit national court proceedings. It is possible that access to justice, based on EU law, has stimulated the case law of the European Court of Human Rights. 48

In the case of Dubetska and Others vs Ukraine, in which the applicants argued that the State authorities had failed to protect their home and their private and family life from excessive pollution, the Strasbourg Court quoted Article 8 (right to respect for private and family life) that it was important to examine the possibilities ‘––to challenge the authorities’ decisions in an effective way––’. 49

An essential part of access to justice is the court’s scope of review. It must be broad enough and must cover both legal and factual issues. 50 For example, in the famous case of Sporrong and Lönnroth vs Sweden, which was about the effects of long-term expropriation permits and prohibitions on construction, the European Court of Human Rights court stated that their case ‘––could not be heard by a tribunal competent to determine all the aspects of the matter ––’. Thus, Article 6 §1 (fair trial) was violated. 51

In the Heathrow night flights case (Hatton and Others vs the United Kingdom) the Strasbourg Court stated that the scope of review should fill certain standards. First of all, the European Court of Human Rights separated two different aspects that it examines itself: the substantive merits and the process. According to the ruling, ‘the Court may assess the substantive merits of the government’s decision, to ensure that it is compatible with Article 8. Secondly, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual’. 52

On the other hand, the European Court of Human Rights emphasised the broad discretion at the national level and the aspects of fair balance: ‘––[T]he Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws ––’. According to the ruling, Article 8 was not violated. However, Article 13 was violated, as the scope of review at the national courts was not sufficient. 53

The European Court of Human Rights has also focused on scientific and technical evidence and studies. 54 In the motorway case of Grimkovskaya vs Ukraine, the European Court of Human Rights noted that ‘ ––the Government has not shown that the 1998 decision to route motorway ––was preceded by an adequate feasibility study ––’. The Strasbourg Court found that the national court had not responded to the main arguments presented by the applicant, and concluded that Article 8 had been violated. 55 In the Heathrow case of Hatton and Others vs the United Kingdom, the Strasbourg Court noted that ‘ ––a governmental decision-making process concerning complex issues of environmental and economic policy such as in the present case must necessarily involve appropriate investigations and studies ––’. 56

Comparison of the Finnish system of experts with the requirements laid down by the case law of the Strasbourg Court enables certain conclusions to be drawn. Most important of all, the Finnish system fulfils the requirements of the Convention concerning access to a court and access to justice. Appeals concerning decisions made by governmental or municipal authorities by applying WA or EPA are effectively dealt with using scientific expertise at the Vaasa Administrative Court. All the aspects of the cases are examined in the court. Moreover, the scope of review is broad and thorough. These viewpoints clearly favour the Finnish system. However, neither the Convention nor case law require national courts to have expert judges solving environmental cases.

3.4 EU Law: Procedural Requirements

In the context of EU law, access to justice primarily means access to a court that is linked to the concept of no rights without remedy. 57 The Article refers to the right to an effective remedy, impartiality, and independence, which has been influenced by European case law and the ECHR. 58 The coverage of the article is broad, as it can be applied to all rights and obligations under the EU law. 59

However, the EU law’s understanding of access to justice is more detailed. CJEU case law concretises the level of scope of review that is required from national courts. National courts and judges have a significant role to play in a decentralised system. 60

Procedural autonomy is limited, particularly when the national courts apply norms based on EU environmental law. Otherwise, the goals of the environmental legislation could not be reached. 61 The principles of effectiveness and equivalence must be taken seriously. 62 National courts are not, however, required to be able to either modify the contents of decisions made by the authorities nor to substitute them with their own decisions. 63

As regards putting EU law into practice, it is essential to define the scope of the review carried out by the national courts, in other words how intensively and to what extent they can scrutinise decisions made by national authorities. National courts should be able to examine both the investigation of and the contents of the facts behind the appealed decisions. At the same time, trias politica and the level of discretion of the authorities must not be forgotten. The norms based on environmental EU law should be applied in the same way and equally effectively in every Member State. The harmonisation of environmental law is not sufficient if the procedural standards of the Member States differ. 64 The limits of procedural autonomy and the broad scope of review required of the national courts are linked to the need for expertise. 65

National courts must examine whether the appealed decision is in line with EU law. Moreover, they must scrutinise whether the national authorities remain within the limits of their discretion. 66 In environmental cases, both substantive and procedural legality should be examined, although making a distinction between these aspects may be challenging. 67

There is no EU legislation on national courts’ access to technical and scientific knowledge in environmental cases. 68 It is clear, however, that the requirements of EU law and the Arhus Convention must be fulfilled. Moreover, substantive EU law must be applied properly when dealing with environmental cases at the national level. 69

The Upjohn case is also relevant in environmental cases. According to the ruling, the principles and rules of Community Law must be applied effectively, but Member States are not required to make ‘––a more extensive review than that carried out by the Court in similar cases’. The court stated that ‘––the Community judicature must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying, in particular, that the action taken by that authority is not vitiated by a manifest error or a misuse of powers and that it did not clearly exceed the bounds of its discretion ––’. 70 The court scrutinised the limits of the authorities’ discretion and saw manifest error as a minimum level. This means that national courts must follow the case law of the EU courts in order to define their own scope of review. 71

The Pfizer judgment by the Court of First Instance concerned the use of antibiotics in feedingstuff. According to the Court, ‘––a scientific risk assessment carried out as thoroughly as possible on the basis of scientific advice founded on the principles of excellence, transparency and independence is an important procedural guarantee ––’. However, ‘––it was not for the Court to assess the merits of either of the scientific points of view argued before it and to substitute its assessment for that of the Community institutions ––’. 72 Although the judgment emphasised a scientific point of view, the Court was still cautious about its own role.

In the case of Tetra Laval, the Court noted that ‘ ––the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must the Community Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account ––Such a review is all the more necessary in the case of a prospective analysis ––’. 73 As even environmental cases often concern prospective analysis, the case of Tetra Laval is relevant.

The scope of review was clarified in the case of East Sussex. The Court noted that ‘judicial review that is limited as regards the assessment of certain questions of fact is thus compatible with EU law, on condition that it enables the court or tribunal hearing an application for annulment of such a decision to apply effectively the relevant principles and rules of EU law ––’. 74 However, even this ruling left the question of expertise in national courts unanswered. 75

The scientific perspective was emphasised in the Waddenzee case in such a way that the national courts had to also be able to evaluate scientific questions. According to the judgment: ‘––pursuant to Article 6(3) of the Habitats Directive, the competent national authorities, taking account of the conclusions of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned, in the light of the site’s conservation objectives, are to authorise such activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects ––’. 76

The Commission Notice on access to justice in environmental matters (2017/C 275/01) guides national courts in questions concerning the Aarhus Convention. According to the Notice, the facts gathered by the administration form the basis. 77 However, ‘––the test of whether there is no reasonable doubt is an objective one and cannot be treated by the national court as a subjective one lying exclusively within the public authority’s own discretion’. 78 Moreover, the Notice states that ‘national courts are not generally required to carry out any information-gathering or factual investigations of their own. ––If a national court could never review the facts on which the administration based its decision, this could, from the outset, prevent a claimant from presenting effectively a potentially justified claim’. 79

The aspects of the scope of review presented in the Notice seem to be lighter that those presented in the Aarhus Convention and the case law of the CJEU, and this can lead to confusion. 80 It remains unclear how national courts can make evaluations in environmental cases without expertise. 81

To sum up, CJEU case law shows that EU law must be applied effectively. National courts ought to be able to scrutinise the judicial assessments made by the authorities, the bounds of discretion, and even the possibility of manifest error. Moreover, national courts should establish whether the evidence is accurate, reliable, and consistent, especially in cases based on prospective analysis. The CJEU has emphasised the importance of scientific evaluation.

Environmental expert judges enable the fulfilling of the EU law requirements concerning national courts’ scope of review. These aspects of the scope of review support the very idea of experts as judges in environmental cases. Meeting these requirements without expert judges is challenging. Moreover, the CJEU case law concerning the scope of review in national courts might become even stricter in the future. 82