Rule of Law : Rural Communities’ Access to Justice

We are often asked “Are you against ALL hydropower then?”  Our answer is simple “No.  If we were convinced that a given project would have no negative impacts then we would have no reason to object.”  


The problem is that we are not convinced, and furthermore that no effort has been made to convince us.  The Environmental Impact Assessments (EIA) which should convince us are of a documented appalling standard.  The public consultations which should have informed us and allowed us to participate in decision-making were faked – verified by the acknowledged signatures of people who were dead at the time of their signing.  Seven years passed between the signing of the concession contracts (2009) and the local community becoming aware of their existence (2016), at which point we were informed that the period for community objection had expired.  When, having become aware of the existence of contracts, we asked to read them we were informed by the Ministry of Energy that each of the three contracts we were aware of were in their entirety considered ‘proprietary information’ of the developers, and were therefore not available to the public.  When we nevertheless did object, working through the due administrative and legal procedures, we met with at best a staggering lack of interest from the government and justice system, at worst outright hostility and threats.


For these reasons, we believe that the ongoing ‘deployment’ of hydropower on the Valbona River is not only an environmental issue, but is at base a key and crucial issue of Human Rights.


At a time when Albania is undergoing particular scrutiny for potential inclusion in the EU – but nonetheless continues to score as one of the most corrupt countries in Europe – it is important to understand that the dire situation of rural communities like those surrounding Valbona cannot be ignored, if any real and accurate assessment of Albania’s progress is to be made.  Unless these situations are redressed, Albania cannot claim to have even a chance of becoming a prosperous nation in which “all human beings can enjoy prosperous and fulfilling lives and [where] economic, social and technological progress occurs in harmony with nature.” (from the 2030 Agenda for Sustainable Development )

Not convinced?  Let’s look closer at our claim.

The key document concerning rule of law related to environmental issues is the Aarhus Convention (1998) , which Albania signed on its implementation in 2001.  The objective of Aarhus, stated in Article 1, is to “guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters”.  As a signatory, Albania has agreed to guarantee these rights.

Below are some key concepts and phrases from Aarhus, accompanied by our experience from 2016 to present indicating how well these concepts are being implemented in Albania today.  Attempting to be brief while writing this, we have realized that each requirement for rule of law could easily – and probably should be – its own article.  

We will also take a moment to remind you that the campaign to question the development of hydropower on Valbona River is only one of 100s of campaigns across the country in which local communities oppose the construction of small hydropower on their home rivers.  The vast majority of those campaigns have not had access to the resources available to the Valbona campaign, and when you add the experience of those countless communities to the experience outlined below, which by no means exhaustively documents our complete experience, it is clear that the rural communities of Albania have not had and do not have access to justice and thus do not experience rule of law and are in fact victims of a very real absence of human rights.  

KEY PILLARS of AARHUS

Access to Information

Theory:

Aarhus requires that “public authorities, in response to a request for environmental information, make such information available to the public”  

In Albania this falls under Law No. 119/2014 “On the Right to Information

Practice:

Since 2016, TOKA and local people have filed something approaching 50 requests for information, mainly from national institutions but also from the regional agency of protected areas, national and local inspectorates, water management institutions and regional government.  The specifics of these requests can be addressed in a separate article, but we found that in general our responses mirror the 2016 Mjaft findings:  Over half of inquiries were either ignored completely, or in the majority of cases failed to supply the requested information.  

For example:

In 2019 we filed suit against IKMT (the National Inspectorate) based on the fact that since 2018 our repeated requests to receive copies of the required quarterly monitoring reports of 2 hydropower plants in construction had been repeatedly ignored.  When responded to at all, the inspectorate confirmed they had the self-monitoring reports of the developer, but did not send them.

In 2020, in response to our request for information, we were informed by the regional agency of protected areas that they had no knowledge of the pollution of irrigation canals by hydropower construction and that to the contrary their staff had visited and confirmed that the water was clean.  This despite the fact that we had in hand their own employee’s written report informing them of the situation and requesting that the inspectorate and police be called in to address the situation.

Public participation in decision-making

Theory:

Aarhus requires that “The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner” and that “Each Party shall provide for early public participation, when all options are open and effective public participation can take place.

In Albania this falls under Law No. 146/2014 “On Notification and Public Consultation

Practice:

“Tplani” – 1 plant.  Concession contract signed in 2009.  Local inhabitants became aware of it in 2014, when the bulldozers arrived.

“Dragobia Cascades” – 4 plants.  Concession contract signed in 2009.  Local inhabitants became aware of it 2016, through a request for information filed by locals, who were actually looking for information on Tplani.

“Valbona Project Company” – 9 plants.  Concession contract signed in 2013.  Local inhabitants became aware of it 2016, through a request for information filed by locals based on a tip from an anonymous employee of the Ministry of Energy.

In the WWF Adria study published in 2021, researcher Jordi Benning found that “only 15% of the respondents feel satisfied with their participation regarding the decision to construct the hydropower plants. 77,2% do not feel satisfied with their participation. And, when asked whether they had a chance to object to the decision to construct the hydropower plants, or a chance to object to the construction itself, 75% answered negatively. Lastly, when asked whether the decision to build the hydropower plants was good, 86,7% answered negatively.” Furthermore “only 17,9% of the people acquired their information from legally official sources, namely the government and the developers’ required public consultations. The large majority, 80,6%, gained their information from either hearsay through the community (46,3%) or through the ngo TOKA (34,3%).”  

In no case have we encountered any individual who confirms that they attended, or were aware of, any public consultation pre-dating the decision to grant the concessions.

In the case of Dragobia Cascades, the environmental application includes a one page document with 20 signatures purporting to be people who attended a public consultation.  Two signatories had died 3 and 10 years before the date of the meeting.  The Village Head signed 3 times, using different versions of his name.  His son and daughter-in-law appear to have signed, although when shown a copy of the page, stated that they had never seen it before.  All other names listed are those of employees of the local construction company contracted.

In the case of Valbona Project Company, the environmental application includes a document with 12 signatures of people who attended a public consultation.  One purported signatory heard about his supposed signature and approached TOKA to see it.  He stated that he was living in Germany at the time of the meeting, and had never seen the document before.  A second signature was that of a well known journalist resident in USA at the time of the meeting who furthermore has been one of the most outspoken opponents of hydropower development in the region.

When in 2018 we filed criminal charges against the falsified signatures as proof of public consultation on Dragobia Cascades, the local court dismissed the falsification as a ‘misdemeanor’ on which the statute of limitations had expired. When we appealed this decision, the Shkoder Court of Appeals ruled that ‘just because dead people had signed did not mean that the meeting did not take place, and that in any case people who did not attend a meeting had no right to complain about the quality of such meeting.’

Access to justice in environmental matters

Theory:

Aarhus requires that the public “has access to a review procedure before a court of law or another independent and impartial body established by law. In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.

Practice:

Taken point-by-point, access to justice should be:

Accessible:  In 2017, the first instance administrative court in Tirana ruled to dismiss our suit challenging the validity of the Dragobia Energy concession contract (3 judges, of which 1 was dissenting).  Their reasoning?  Since the government ipso facto makes decisions in the public interest, for said public to object to such decisions was nonsensical and therefore Aarhus did not apply.

Expeditious:  

  • Since the 2017 ruling mentioned above, in 4 years our case has still not reached appeals.  Meanwhile construction on the plants in question has been completed.  
  • An interim injunction filed at the same time as the suit was rejected in 2017, came to appeals four years later in 2021 and was rejected, and then was subsequently upheld by the high court of Albania in July 2021.  This decision should now block operation of the plants in question, but the delay allowed construction to be completed causing much damage inside Valbona Valley National Park.
  • In our 2019 suit against IKMT (the Inspectorate), the first instance court judge overruled an objection of the developer as being ‘absurd’ – but allowed them to appeal his decision on procedural grounds.  Such appeals are referred directly to the high court, which at the time did not exist due to all the judges having been removed for corruption.  Our lawyer pointed out that by the time that non-corrupt judges were approved and a new high court was appointed, the backlog of such requests would mean that it could take as much as 10 years for the case to resurface.  “That is the law,” said the judge.  When we asked “That is the law, but where is justice?” the judge smiled and shrugged.
  • In 2018, TOKA and 30 local inhabitants filed criminal charges for the falsification of signatures on the public consultation document.  The prosecutor added a charge of “use of a falsified document”, and referred the case to the Tirana court system as in his opinion this is where the falsified document was used – by the National Environmental Agency.  In 2020, the Tirana court system returned the case to regional courts, stating that it was their jurisdiction since that was where the document was created.  The local court refused to agree and referred the question of jurisdiction to the (still non-existent) high court for a decision. In 2021, no decision regarding jurisdiction has emerged, and the crime remains unprosecuted.

Inexpensive:  Ha. Ha?

  • Our 4 administrative suits against the government have been joined by the developer Gener 2 as third party, although in practice the defense has in every case been conducted entirely by the developer’s lawyers.  Gener 2 is one of, if not the, largest construction companies in Albania, with the sole owner Bashkim Ulaj identified as the 10th richest man in Albania (having fallen from #3 in 2014).  It took TOKA 11 months in 2016 to find legal representation qualified and willing to oppose Gener2.  Normal rates for representation in such a suit could easily approach 40,000€, and we are not aware of any financial mitigation remedies available in Albania.
  • In the case of civil suits, or in the case of injunction measures, the court can determine that the plaintiff (us) must post a financial guarantee to compensate the developer for lost income during the period the injunction remains in effect. There is no legal limit to the amount of the guarantee.
  • Strategic lawsuits against public participation (SLAPPs) are obstacles to ensuring that citizens have access to justice and in implementing the Aarhus Convention . . . .  The targets of SLAPPs must often endure several expensive years of litigation before a court rules in their favour.”  In 2018, Gener 2 sued TOKA for 20,000,000 lek (~160,000€) for defamation.  Their basis was that TOKA spoke badly about the company on television and in social media. As a non-profit whose activities have been 100% project grant based, TOKA maintains no reserve of funds to pay for legal defense.

Impartial:  Since 2016 and the implementation of Law No. 84/2016 “The Vetting Law” has acknowledged and attempted to correct the rampant corruption of the Albanian Justice System.  “By  introducing  a  well-architected  vetting  law,  Albania  aspires  to  build democratic and accountable institutions of high integrity that would prevent future repetition of human rights abuse.” We would also argue that the need for such a law, and the subsequent removal of up to 80% of sitting judges, inherently establishes that any trial in Albania has been and may still be highly questionable in terms of impartiality.  The recent overturning of decisions dating back to 2017 may indicate the growing success of the process, but it is by no means complete.

“Access to justice is a basic principle of the rule of law. In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable.” – “UN and the Rule of Law

“Access to justice is not just a right in itself but also an enabling and empowering tool central to making other rights a reality.”Handbook on European law relating to access to justice 

“Legal rights are of value for an individual only when they can be asserted in a court of law and when this court renders correct justice, in due time and in a way that inspires public trust.”OSCE Ambassador Eugen Wollfarth, 2012

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”Aarhus Convention

SDG 16: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels” the 2030 Agenda for Sustainable Development