Executive Summary

Doors to Democracy shows that although Europe is moving slowly in the direction of more participatory forms of democracy, major problems still exist in each of the main regions. Whereas Central and Eastern European countries tend to have constitutional provisions protecting rights to information, participation and justice, development of specific detailed laws capable of delivering these rights in practice is quite limited. In Western Europe, specific laws setting down concrete procedures are more developed, especially in the field of information, but there are large variations within the region. There is room for improvement in public participation laws and practices in all European countries.

Laws alone are not sufficient to create a truly participatory democracy. Cultural changes are needed, especially in countries with deeply entrenched customs based on official secrecy. Countries with a thriving NGO sector find that public participation is enhanced and better informed.

The Right to Information

• Most European countries now apply the right of access to information to any natural or legal person, without their having to prove an interest and irrespective of nationality, citizenship or domicile. However, a few countries still fail to apply the "any person" principle.

• In countries not having general freedom of information laws, narrow definitions of environmental information can prevent public access to some important environment-related information (e.g. relating to human health, GMOs, energy, economic analysis related to environmental decisionmaking, policies, programs and plans).

• In both East and West, broadly defined exempt categories of information give excessive discretion to public authorities to withhold information without good reason ("state secrets" or "official secrets" in NIS and CEE; "internal communications," "confidential proceedings of public authorities"or "voluntarily supplied information" in the West; commercial confidentiality everywhere). The requirement of a public interest test, to be applied if information is to be withheld, is emerging as a good practice in some countries.

• There is considerable variation in time limits on providing information, ranging from a few days up to two months and more. Failure to respond at all is also a problem.

• Excessive charges for information tend to be more of a problem in Western countries than in CEE or NIS countries, even though paradoxically it tends to be Western countries that have rules to prevent over-charging. In NIS and some CEE countries, the lack of availability of copying equipment can often be a greater problem than high charges.

• Despite the dramatically improved efficiency and reduced costs which can result from providing information in electronic form, none of the countries studied make it obligatory for public authorities to provide information in this form when requested or to put certain types of information on the Internet, though this is emerging as a good practice in a number of countries.

• Countries do not generally require the private sector to provide information directly to the public except in respect of major hazards or pollution incidents. There are considerable differences between countries in the mechanisms whereby the private sector is obliged to supply information to public authorities. The prevailing climate in favor of deregulation of industry has led to over-reliance on a voluntary approach. The introduction of mandatory pollutant release and transfer registers, a powerful tool for gathering information on potential polluters and putting it into the public domain, is at an early stage in Europe when compared for example to the US.

The Right to Participation

• Public participation in the preparation of laws and regulations occurs in the parliamentary phase only to a very limited extent (e.g. through hearings involving representative NGOs). During the executive phase there is slightly more scope for participation, but some of the essential elements are missing (e.g. draft regulations are not publicly available in many countries). A few countries (e.g. Hungary) have quite extensive participation possibilities for NGOs, showing what is possible given the political will.

• Public participation in the preparation of policies, programs and plans is provided for to some extent in most Western and CEE countries, but much less so in the NIS countries. Some interesting models of partnerships between NGOs and public authorities have emerged in some CEE and Western countries, but substantial improvements are needed in most countries.

• A significant number of countries are now using Strategic Environmental Assessment (SEA), involving public participation as a tool in the development of policies, programs and plans, and a few are using it in the context of developing legislation, though overall its use in the ECE region is still quite limited.

• Provisions for public participation in Environmental Impact Assessment (EIA) of projects in NIS countries are extremely inadequate and urgently need upgrading. Western and CEE countries provide for participation at the stage of reviewing EIA documentation, but in virtually all countries of the ECE region there is a lack of public participation in the crucial scoping phase of EIA.

• Public participation in licensing or permitting of specific activities is quite limited in most countries, and especially in the NIS region, with participation often limited to the "affected" public and inadequate mechanisms to ensure that comments are seriously taken into account.

• A small but significant number of countries provide for referenda and the right of legislative initiative as means of involving the public directly as decisionmakers.

The Right to Justice

• The scope for the public to directly enforce environmental laws through citizen suits is very limited in Europe, though a few countries are taking steps in that direction, e.g. by granting standing to environmental NGOs.

• Restrictive standing rules are one of the major factors limiting the degree of access to justice. The trends are toward more open standing in certain administrative proceedings, especially those relating to access to information, and special standing for NGOs in specific procedures.

• Costs are a significant barrier to access to justice in many countries, especially in the NIS region. In some countries, NGOs and citizens are exempt from paying court fees when taking cases to protect health.

• Difficulty in obtaining injunctive relief is one of the major stumbling blocks to achieving access to justice in environmental matters.

• Low cost accessible administrative or quasi-judicial appeals mechanisms (e.g.the ombudsperson facility found in Scandinavian and other countries) can provide swift and flexible resolution of disputes as well as reducing the burden on the courts.