1 Introduction: the Italian context
The access to justice in environmental matters in Europe, as crystallized in Article 9 of the Aarhus Convention (i.e. Convention on access to information, public participation in decision-making and access to justice in environmental matters taking place in Aarhus, Denmark on 25 June 1998) and covered in Italy by a number of different regulations, has been the object of extensive discussions in the recent past, with respect to the effectiveness and substantial compliance of the Italian legal system with its requirements, also in a comparative view.
The Italian perspective1 is certainly peculiar for its historical and political context: albeit a general sense of compliance of the legal system with the pillars of access to justice, anyone wishing to enter into the details of the matter has to confront the theory with the immense criticalities of a local judicial system that hardly reflects and spreads the innate sense of real justice of any human being.
Without any purport of completeness2, this article aims at sketching some of the instruments that the Italian legal system has rendered available to individuals, environmental organisations and public agencies representing citizens and residents. These instruments address some of the most important aspects of environmental matters, disputes and effective barriers which are still present in the system, along with some potential solutions for the way forward.
2 Highlights on the Italian legal framework
2.1 Access to information as a background for access to justice
In the last decades, one of the main objectives of the National Parliament has been to render the obsolete bureaucratic Italian legal system, more transparent and generally accessible to the public. In such a system public deeds have benefited from an aura of secrecy and immunity deriving from an octroyed idea of the administrative activity.
Under a regulatory framework, the Italian legal system includes regulations of different rankings which are aimed at ensuring that the general3 background rights of access to information with respect to administrative proceedings and documents are properly preserved and guided to ensure the specific requirements of access to justice.
Quite curiously, access to environmental information was regulated by the Italian Parliament even before the right of access to administrative proceedings and decisions in the ambit of a procedural activity was regulated by a general law. In this respect, Italy may be considered a forerunner: Article 14 of the law establishing the Ministry of Environment in Italy (i.e. law no. 349 of 8 July 1986) provided that any citizen has the right to have access to available information on the environment and its conditions. In compliance with the existing law of the public agencies, one can also get copy of such information, free of charge and just reimbursing the relevant copy costs. In 1986 the status of environmental regulation in Italy was extremely primitive, including only some fragmentary laws on sea, general water discharge and little else. However, the same law no. 349 of 1986, as we will further elaborate upon in the following paragraphs, contained certain principles which were to be reflected in the third pillar of the Aarhus Convention. These principles included the granting of an explicit legal standing to territorial agencies and to environmental NGOs, to a certain extent more advanced than that awarded not less than twenty years after by the ECA (Environmental Consolidated Act, Legislative Decree no. 152 of 3 April 2006).
1 The leitmotif of Italy being far behind other countries in the implementation and enforcement of general international or European regulation is somehow disputable in environmental matters. There are significant cases where the Italian regulators have been pioneers in this matter. More recently, however, the balance is more negative, especially with respect to the effectiveness of the protection of primary rights in court.
2 The literature on access to justice in Environmental matters in Italy dates back to the early nineties and includes significant recent contributions. The most recent comprehensive view on the matter is provided by Nicola De Dominicis examined the status of the art in "L'accesso alla giustizia in materia ambientale - Profili di diritto europeo", Milan, 2016. Other contributions worth mentioning for the different perspectives examined include: G. Butti and L. Butti, Il diritto di accesso alle informazioni ambientali disponibili presso la pubblica Amministrazione in Rivista Giuridica dell'Ambiente, 1991, p. 462, T. Frosini, Sul nuovo diritto all'informazione ambientale, in Giurisprudenza Costituzionale, 1992, p. 4463; J. Harrison, Legislazione ambientale Europea e libertà di informazione: la Convenzione di Aarhus, in Rivista Giuridica dell'Ambiente, 2000, p. 28. More generally on access to justice in Italy see also: Varano, V. & De Luca, A. (2007), Access to Justice in Italy, in Global Jurist, 7(1).
3 Such rights have been regulated throughout the last 30 years to balance the Italian legal 'administrative system'. This contemplates in matters considered to be of public interest the subjection of the citizen to the authority of the agencies' decision, and is therefore subject to a special administrative jurisdiction. This is - generally - called to decide on cases where the subjective position of the private party is not that of a 'full right' but that of a 'legitimate interest', demeaned by the presence of a predominant public interest to be preserved in the collective advantage.
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