28 Dec Access to aid for the legal defense of the environment: a pending issue in Spain
Access to justice is essential to ensure the implementation and enforcement of environmental legal standards and policies. Access to justice is one of the three pillars of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Convenio de Aarhus, 1998)[], known as the Convention on Environmental Democracy. The Aarhus Convention plays an essential role in meeting Sustainable Development Goal (SDG) #16 to promote just, peaceful and inclusive societies. 2018 is Aarhus Convention´s twentieth anniversary and Spain has been a contracting Party for more than twelve years now. However, today there are still barriers in our country to the exercise of the right of access to justice that hinder the work of many environmental organizations.
One of the barriers to be highlighted on such a day as today is the denial, in certain cases, of legal aid for environmental NGOs. In addition to being part of our legal system, the obligations contained in the Aarhus Convention are reflected in the Law 27/2006, of 18 july (Aarhus Law). In relation to the third pillar, concerning access to justice, which is essential to ensure effective compliance with the other two democratic rights to information and participation, article 9 of the Aarhus Convention establishes the obligation for States to establish appropriate mechanisms to eliminate or reduce financial or other obstacles to access to justice. In order to comply with this requirement, Law 27/2006 recognizes the right of certain environmental NGOs to legal aid under the terms determined in the Legal Aid Law 1/1996.
At present, various courts have recognized access to legal aid by direct application of the Aarhus Law, without having to prove the lack of economic resources to litigate. However, this is not a unanimous interpretation, and, in some cases, certain Legal Aid Commissions in some Spanish Autonomous Communities hinder organizations such as IIDMA access to justice by denying legal aid.
The Aarhus Convention Compliance Committee has shown that this barrier to access to justice in Spain does not comply with the Aarhus Convention. During the Sixth Meeting of the Parties to the Aarhus Convention, held in Budva (Montenegro) in September 2017, IIDMA stressed the need to remove current obstacles to access to legal aid []. One of the decisions of the meeting of the parties required Spain to adopt urgent measures to ensure the elimination of existing obstacles to access to legal aid by NGOs []. In October 2018, Spain should provide the first progress report on the measures taken and the results reached in complying with the recommendation issued by the Committee [].
Although progress has been made in this area, access to justice and legal aid by environmental organizations is still a hindrance in Spain. For this reason, we trust that the new Government, and especially the Ministry for Ecological Transition, which includes the Spanish Focal Point of the Aarhus Convention together with the Ministry of Justice, will take the necessary actions to guarantee unambiguous access to justice and legal aid.
To help remove barriers to access to justice in environmental matters, including access to legal aid, IIDMA together with seven other European organizations is implementing the “Project A2J EARL on Access to Justice in Environmental Matters”, which is supported by the European Commission’s LIFE+ Programme. Through this project, we seek to broaden the knowledge and raise awareness among all members of the legal sector in Spain on the importance of ensuring effective access to justice in environmental matters. Today, the day on which Access to Justice is celebrated, we insist once again the need for our country to fulfil its unavoidable commitments as a State Party to the Aarhus Convention.
The Aarhus Convention was ratified by Spain in December 2004, and entered into force in March 2005 (BOE no. 40, 16.02.2005).
BOE num. 171, 19.07.2006.
 Judgement 22.04.2013, TSJ of Extremadura; Judgements 3.06.2013, 9.06.2014, 6.02.2015 and 28.10.2015 TSJ of Madrid.
See “Statement on Draft Decision VI/8j concerning compliance by Spain with its obligations under the Convention”, in : https://www.unece.org/fileadmin/DAM/env/pp/mop6/Statements_and_Comments/MOP-6_3_Compliance_by_Spain_-_IIDMA_statement.pdf.
 Draft decision VI/8j concerning compliance by Spain with its obligations under the Convention ((ECE/MP.PP/2017/2/Add.1), see in: https://www.unece.org/fileadmin/DAM/env/pp/mop6/English/ECE_MP.PP_2017_29_E.pdf .
 Ibid, 8. a).