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Human rights in Ukraine – 2007. Human rights in Ukraine – 2007. 18. Environmental rights

27.07.2008

[1]

Environmental rights form an integral category linked with the natural human right to life and personal security. The concept encompasses different aspects of protection of the environment as humanity’s only possible home. By environmental rights we understand the right to a safe environment; protection of health and life from harmful environmental factors;  the right to compensation for damage caused health and property through violation of the right to environmental safety; the right to enjoy natural resources; the right to environmental information; , public participation in decision-making and access to justice in environmental matters.

In 2002 UNESCO adopted the “Earth Charter”, a declaration of fundamental principles for building a just global community in the twenty first century, which essentially recognizes the principles of environmental ethics. Among the key principles of the Earth Charter are the following: respect for nature, responsibility before the world community and future generations, acknowledgment of our duty to protect the Earth, its diversity and beauty. It is important that the focal centre of the Charter is the human community (Principle 1 of the Charter), and not the human being alone.

 

1.  The right to a safe environment

1.1. Environmental safety

For three years now, the unlawful practice has continued whereby the main official source of information on the basis of which one can make well-founded general statements about the state of environmental safety in the country – “National Report on the State of the Environment in Ukraine” has not been published. It is worth noting that the annual review by the Verkhovna Rada, the publication in a separate edition and the posting on the Internet of this National Report is a requirement set down in Article 251 of the Law “On protection of the natural environment”. The last report submitted for review by the Verkhovna Rada was that for 2003.  During 2007 the official website of the Ministry for Environmental Protection contained only a draft “National Report for 2004”. As of March 2008 the Ministry has not drawn up and publicized reports for 2005-2007.

In response to an information request from the environmental organization “Zeleny Svit” [“Green World”] to the Ministry for Environmental Protection [MEP]  from 5 January 2007 № 06-01 asking for an explanation as to why there had been no National Reports for so long, the Deputy Minister S. Kurulenko stated that in its plan of work for 2006, the Ministry had envisaged financing for a work of scholarly research “Preparation and publication of a National Report “On the State of the Natural Environment in Ukraine in 2004 and 2005”. However all tender bids for this work were rejected by the Ministry. In 2007 financing had been planned for a National Report  “On the State of the Natural Environment in Ukraine in 2005”. Despite this, as of the beginning of April 2008 the latest report was not on the official website of the Ministry, and had not been presented to the Verkhovna Rada.

MEP Order No. 218 from 26 April 2007, implementing the Verkhovna Rada Resolution “On informing the public about issues concerning the environment” from 4 November 2004, approved Regulations for preparing and posting environmental information on the Ministry’s website and preparation and publication on their basis of a quarterly information and analysis review “The state of the environment in Ukraine”. A box to press on with the words ““The state of the environment in Ukraine” did indeed appear on the official site, , however pressing it brings up only the message “Sorry, the page has not been found”.

Under such conditions the opportunities for the interested public to receive information about the state of environmental safety is generally restricted to access, by no means always free and simple, to some working documents of the Ministry for Environmental Protection and others involved in monitoring of the environment.

To a certain extent generalized information about the state of the environment was provided in the decision of an MEP panel from 1 February 2007.[2]. Here the Ministry states that overall the state of the environment cannot be considered safe for life and health. Environmental problems have accumulated over decades – in the past environmentally unwarranted build up of the scale of natural development of the economy and exhaustion of limited natural resources were brought about by the energy and resource structure of the economy resulting in an extremely high level of population and degradation of the environment.  According to the MEP assessment, the manmade burden on the environment continued rising in 2006.. Approximately 15% of the territory of the country with a population of over 11 million is in a critical environmental state.

Approximately 80% of Ukraine’s territory is in zones of heightened risk of emergencies. The manmade burden on the environment is 4-5 times in excess of the analogous figures for most developed countries. The main environmentally dangerous economic structures and manmade pollutants are those linked with the energy industry, heavy industry, transport and agriculture.  The list of the most environmentally dangerous cities in the country in 2004 contained over 80 places, this including almost 80% of all major cities. At present, as well as harmful industrial waste and emissions, other environmental problems are of mounting concern. These are, first and foremost, the extremely rapid increase in vehicles in city streets, as well as the overwhelming increase in the amount of domestic waste and number of new sites turning into unplanned rubbish dumps.[3]

In comparison with 2004, an increase in harmful emissions into the atmosphere was detected in 19 regions, however the most significant were in the Kyiv region (up by 34.9 thousand tonnes, or by 48%), Poltava region (up by 24.7 thousand tonnes, or by 36%), Kherson region (3.8 thousand tonnes, or by 35%), Ivano-Frankivsk regions (65.1 thousand tonnes, or by 32%) and Ternopil region (4.5 thousand tonnes, or by 31% more).[4].

In 2006, from 11 thousand industrial enterprises placed by the MEP on their records, 4.8 million tonnes of harmful substances were released into the air (up 0.3 million tonnes, or 7.3 % more than in 2005).  It is to be expected that the highest levels of air pollution are year in year out recorded in cities in the Donetsk – Dnipropetrovsk region, where the scale of industrial emissions is around 80% of the total amount for all main industrial enterprises in the country. At present Ukraine Is one of the few countries still using marteniv furnaces which do not have any cleaning structures at all. There are 11 such furnaces in operation at the steel enterprise “Azovstal”, and 6 at DMZ.

According to official statistics in 2006, there was a stockpile of 21 thousand tonnes of unsuitable or prohibited pesticides which, if stored without observing safety rules, can cause soil and ground water contamination, as well as poisoning people. 2.5 thousand tonnes of prohibited pesticides are kept outside in the Donetsk, Zaporizhya, Odessa, Kharkiv, Kherson regions and in the Crimea.[5].

An analysis of river water for hydro-chemical indicators suggests deterioration in their condition. Each river basis has its own particular features, however the negative tendency is observed in virtually all basins. According to official estimates from the State Committee of Ukraine on the Water Economy, around 80% of the population use water from surface water supplies which have a high level of pollution (class 3 or 4 in terms of quality, these being “moderately polluted” and “polluted”)

The use of obsolete technology for preparation of drinking water, (for example, adding chlorine), aimed at bringing natural water to the quality of drinking water only in cases where the resulting water complies with first class cleanness, does not make it possible to ensure water for the population which is safe for health. After all, there is virtually no such class 1 clean water in Ukraine.  A considerable percentage of the population therefore receives drinking water which deviates significantly from the norms required. In 14 regions, from both natural and manmade causes, 1, 228 populated areas do not have guaranteed water sources, and their inhabitants are forced to use imported water. The unsatisfactory technical state of the water pipe networks leads to secondary pollution of water, a worsening of the situation with sanitation and epidemics, and flooding of the territory of populated areas.[6]

It is officially acknowledged that the situation with water supplies to the rural population is one of the worst among European countries. Despite the fact that in rural areas more that 55 thousand kilometres of water mains and over 70 thousand boreholes have been drilled, primarily for providing water supplies to livestock farms and agricultural enterprises, the percentage of rural buildings with built in water pipes and running water is 3 times lower in Ukraine than in Russia, and four times lower than in Belarus. In 2005 around 32% of the water samples taken from rural wells and boreholes failed to comply with sanitary-chemical norms, and approximately 23% had unacceptable sanitary-bacteriorological readings. There is constant nitrate contamination of subterraneous waters due to manmade activities. There are no effective methods for removing nitrates from the water given the decentralized water supply system. The contamination of water with nitrates is leading to water-nitrate haemoglobin anaemia among children, a general deterioration in the body’s resistance which contributes to a general increase in disease, including infectious and oncological illnesses.

According to figures from the Ministry of Health, approximately 4 thousand general education institutions (20% of the total number) are not connected to centralized water supplies. The largest percentage is found in the following regions: Lviv – 44%; Ternopil – 39%; Chernihiv – 36% and Volyb – 35%. 7.3 thousand schools (35% of the total) do not have sewage systems.

 Pollution is one of the factors for the medical and demographical crisis in the country. Against the background of negative population growth, infant mortality (in the first year of life) is on the rise. Whereas in 2004, 9 infants of every thousand newborn died, in 2005 the figure was 10 and in 2006 – 11.  The increase in infant mortality is linked with a rise in the number of congenital defects which are recognized throughout the world as being a marker of environmental problems.[7].

In terms of level of danger for people, top place is held by air pollution. In cities with a high rate of air pollution, the number of people suffering from heart and vascular disorders, respiratory problems, disorders of the nervous system, malignant tumours, tuberculosis and other diseases are 20-40% higher than the level in cities with low levels of air pollution. The problem is particularly acute for children whose organisms are more susceptible to unfavourable environmental factors. Immune deficiency is rising which is one of the causes for an increase in the number of infectious illnesses. The deterioration in children’s health is typical for all ages. Since 1991 diseases of the endocrinal system and digestive disorders have tripled, the number of tumours is 2.7 times higher; blood disease – 2.6 times greater. The rates for skeletal or bone, urinary, and vascular disorders, as well as congenital defects, have all doubled.[8].

Reproductive issues are also giving grounds for concern with almost 68% of births taking place with problems and the level of infertility among women of child-bearing age being around 7%, with an ever greater number of men infertile.

It should be noted that the Ministries for Environmental Protection and of Health have virtually backed away from any analysis of links between the state of the environment and its impact on indicators of public health. There is practically no information about specific influence of environmental problems on health in the last official reports of these ministries. It is far from always possible to receive information from Ministry of Health bodies about the impact of adverse environmental factors on people’s state of health.

 

1.2. The most prominent events

1.2.1. Radioactive contamination of territory in the city of Kostianynivka

In April 2007 members of the Environmental Centre “Bakhmat” in Kostianynivka in the Donetsk region discovered a point of radioactive contamination. On the surface of the city rubbish dump, 750 metres from housing, the level of radiation reached 700 thousand microroentgen per year (against a background of 20 microroentgen). A state of emergency was declared on the territory contaminated by radionuclides of caesium-137. The prosecutor’s office initiated a criminal investigation over soil contamination and unlawful treatment of radioactive substances. According to one of the investigators’ versions, dangerous waste from the region’s enterprises was brought to the Kostianynivka rubbish damp over a long period of time. According to another explanation, a radioactive source stolen from an enterprise and uncovered found its way to the dump. As this is being written, those responsible have not been found which is somewhat strange since it is not so difficult to identify the people who could have had radioactive substances at their disposal.  Civic environmental organizations are demanding that the law enforcement agencies and controlling bodies get to the bottom of all the reasons and circumstances of the radioactive contamination in Kostianynivka, carry out intensive radiation monitoring of populated areas and make their results public.

 

2.2.2. Increased confrontation over the National Nature Park “Hutsulshchyna”

The National Nature Park “Hutsulshchyna” was organized in 2002 by Presidential Decree. It is a step towards fulfilling Ukraine’s international commitments with regard to creating a network of environmentally protected areas and developing “green tourism” in accordance with provisions of the “Framework Convention on the Protection of the Environment and Sustainable Development of the Carpathians”.

However, over several years the Park’s development has run into deliberate opposition from the local authorities, structures of the State Committee for Forestry and individual business people with an interest in intensive use of the Carpathians’ natural resources, firstly in increasing the scale of felling in the mountain forests. As a result, it has still not been possible to finally agree the borders of the park and receive a State act confirming the right to permanent use of the land.

In 2007 destructive activities of the enemies of the park aimed at eliminating it or significantly reducing its area intensified. Not only property of “Hutsulshchyna” was placed in jeopardy, but also the lives of the park’s employees. At the end of 2006 there were arson attacks to the Starokutsky and Sheshorsky scientific research units of the park. On 11 January 2007 the “Hutsulshchyna” administrative building was set alight. A criminal investigation was initiated by the prosecutor’s office, yet the investigation team has still not found the culprits.

On 17 January 2007 the Kosiv District Council adopted a decision scheduling for 4 March 2007 a local referendum at which residents of the district were supposed to decide on whether to pass State forests to “Hutsulshchyna” (this having been carried out 5 years ago by Presidential Decree). In spite of the fact that the Kosiv District Prosecutor appealed against this decision as being unlawful, the district council simply rejected the project. In order to stop the self-willed decisions of the majority in the Kosiv District Council, the prosecutor’s office lodged an application with the court to have its decisions recognized as invalid. The administrative suit is at present under examination in the court. However, regardless of the fact that according to Article 21 of the Law “On the prosecutor’s office”, the very submission of a prosecutor’s application to the court asking for a legal act to be declared unlawful, suspends the act’s force, the district council still resorted to holding a local referendum and created district and precinct commissions which set about carrying out their functions. Information material and ballot papers were prepared, voting was held, together with a vote count, and so forth. The local referendum held on 4 March failed to be accepted due to the low turnout of voters.[9]

The heightened confrontation over “Hutsulshchyna” elicited a wave of public concern throughout Ukraine. Civic organizations made a number of appeals to high-ranking public officials on this subject. One of these appeals was placed on the website “Maidan” for people to read and sign. Regrettably the appeals from the public have thus far not received an adequate response from the authorities/.

On 17 November 2007 a working meeting took place in Kosiv between members of the civic organizations: the National Ecological Centre of Ukraine, the Ukrainian Environmental Association “Zeleny Svit” [“Green World”], the environmental and humanitarian association “Zeleny Svit”, the OPORA network and others. It was agreed to begin a civic campaign “Hutsulshchyna” must survive![10]  The aim of the campaign is to exercise the constitutional right to an environment which is safe for life and health, as well as the right to participate in the protection and use of Ukraine’s natural reserve fund by promoting the development of the national nature park “Hutsulshchyna”.

 The members of the campaign “Hutsulshchyna” must survive!” have the following objectives:

­  to force the authorities to carry out the provisions of the Presidential Decree “On creating the national natural park “Hutsulshchyna”;

­  to demand from law enforcement agencies that an end be put to violations of environmental protection legislation on territory which falls within the national park;

­  to achieve an end to unlawful pressure on the park personnel;

­  to promote the combining of the possibilities of the authorities, scientific and educational institutions, organizations of civic society, the media and international institutions to promote the development of “Hutsulshchyna”;

­  to actively advertise the advantages of the national reserve and matters and action plans for the activities of “Hutsulshchyna” in order to achieve the sustainable development of local communities.

 

1.2.3. Train derailment on the Lviv railways and release of toxic substances

2007 could with justification be called the year of catastrophes.

On 16 July 2007, at the junction Ozhydiv – Krasne a freight train carrying 15 cisterns of liquid “yellow” phosphorous derailed.  The cisterns overturned, and air got in causing six of them to catch fire. The flames contaminated the environment around, mainly the air, with phosphorous and its oxides. 8 populated areas were affected: Turye, Hubysko-Turyanskt, Stovpyn, Perevolochne, Chapyk, Toporiv, Anhelivka and Lisove, and some of their residents temporarily evacuated. Monitoring carried out over several weeks by the Sanitary and Epidemiological Service and the State Environmental Inspectorate for the Lviv Region on the area around where the derailment took place showed a gradual normalization of the readings for phosphorus contamination of area, soil and water sources.[11]

The “phosphorus accident” demonstrated the inadequate professional training of fire fighting units and the Ministry for Emergencies for dealing with non-standard accidents. For example, in extinguishing the phosphorus fire during the first hours they used water which led to additional emissions of toxic substances and affected the health of those fighting the blaze.  Official information about the environmental consequences of the accident released during the first days was extremely contradictory, from declaring something on the scale of a “second Chernobyl” to claiming that everything was absolutely fine. A few months after the accident, all news about it disappeared from the pages of the official website of the Ministry for Emergencies “News archive – emergencies”[12]

 

1.2.4. Forest fires in the South and East of Ukraine

Due to abnormally hot, dry and windy weather, July and August 2007 were marred by frequent forest fires which reached catastrophic proportions in mountain areas of the South of the Crimea, and in the Kherson, Mykolaiv, Luhansk, Donetsk and Dnipropetrovsk regions. August 2007 was one of the worst times since forest records have been kept with thousands of hectares of forest destroyed, human loss and the labours of almost half a century devastated.

Besides climatic anomalies, the following reasons for the fires are named: carelessness of holiday-makers; burning dry foliage at the edge of the forest; deliberate arson – including for the purpose of concealing illegal felling. Scientists also point to former mistakes when foresting steppe and barren landscapes with virtually only pines being planted.

In the Uch-Kosh Canyon which is part of the Crimean Natural Reserve under the State Department of Affairs under the President, a fire which started on 30 July spread over 80 hectares and within a few days had destroyed 150 hectares of reserve area forest.

In August on the territory of the Yalta Mountain and Forest Reserve and in the Baidar valley there were fires in pine forests and relic juniper registered in Ukraine’s Red Book. Since its wood is used for preparing decorative craftwork and it gains value after drying out on the trunk, one cannot exclude the possibility that arson was involved. As a result of this fire, 70 hectares of forest burned down, and 300 hectares were engulfed by low-level flames which will lead to a significant change in the mountain ecosystem. A forest ranger from the Yalta Reserve Volodymyr Taryeyev and his wife Larissa died fighting the fire.

In total during August 2007 127 forest fires were recorded in the Southern Crimea[13]

On 11 – 12 August in the Stanychno-Luhansk district of the Luhansk region, 200 hectares of pine forest were destroyed by fire.

On 20 August, approximately 80 hectares of pine forest in the forest tract “Novopetrivske” in the Mykolaiv region burned down. In August there were also major fires in the regional landscape park “Kinburnska Kosa”.

For almost a week, from 22 to 28 August fire fighters worked to extinguish a fire at the State Vasylkivsk forestry enterprise in the Dnipropetrovsk region. The Ministry for Emergencies estimates that around 300 hectares of forest and steppe land were destroyed.

20 August in the Holoprystansk district of the Kherson region marked the beginning of the biggest forest fire over the last decade. At first the fire engulfed pine forest over around 200 hectares. As a result of the high air temperature and a stronger wind, the fire spread at a speed of 60 km/hour. The Ministry for Emergencies says that by 21 August the flames had engulfed approximately 1, 500 hectares of forest. On those same days, up to 200 hectares of Tsyurupinsk Forest burned down, while there were also major fires to plantations of Crimean pine at “Oleshkivski pisky”[14]

From 22 – 23 August the Ministry for Emergencies reported that the fires had been localized. However, as the final calculations showed, by the end of August fires in the Kherson region alone had destroyed around 8 thousand hectares of forest. Overall in 2007 there were 367 forest fires in the Kherson region.[15]

It should be noted that forest plantations in areas which are at risk of becoming desert fulfil ecological and restoration functions. The forest is invaluable for protecting the soil and water and as a climate regulating factor. The loss of a manmade forest on thousands of hectares of the moving Nyzhnyodniprovski sands is undoubtedly an environmental disaster.

1.2.5. Disaster in the Kerch Strait

During a storm in the Azov and Black Seas near Ukraine’s shores on 11 November 2007 5 boats were shipwrecked.  The Russian Volganeft-139 oil tanker split in half and spilled a huge amount of oil. As well as the Volganeft-139, the Russian cargo ships Volnogorsk, Nakhichevan, Kovel and the Georgian cargo ship Khach Ismail all sustained damage, and another Russian barge Don-2 sank on 12 November.  6 boats – one Ukrainian and two Turkish cargo ships, and three barges - broke anchor and ran aground.  As a result  more than 3 thousand tonnes of oil were spilt, as well as around 6.8 thousand tonnes of sulphur[16]

This disaster is with cause considered to have been the worst environmental disaster which Ukraine has experienced over recent years. 23 men died and more than 10 thousand waterfowl perished. The environmental crisis caused by the accidents brought massive damage to the environment of the Kerch Strait, the Azov Sea, the Taman Peninsula and Eastern Crimea, and will long continue to have an adverse effect on the nature of the region.[17]

One of the reasons for the disaster and the severity of its consequences was the lack of regulation of legal issues around establishing the Ukrainian – Russian sea border, protection of the environment and economic activities in that region.

For example, the Bucharest Convention (2002) on the Protection of the Black Sea from Pollution and other international documents on protecting the environment of the Black Sea and Azov Sea are hampered by the fact that Ukraine and Russia have not concluded the relevant procedures for implementing these international documents. Ukraine has not signed the Action Plan in Emergencies within the framework of the Bucharest Convention. Therefore this document too remains mere decoration and does not oblige the governments, relevant ministries and their territorial services to enforce it.  Agreements on protection of the environment, shipping and fishing in this water area linked to the main Ukrainian – Russian agreement on the sea border have long awaited signing. All are together in one package.

The disaster in the Kerch Strait is in its essence not only environmental, but also socio-political. There is a transit centre functioning which is to a large degree criminalized, dangerous for society and ruinous for the natural environment and safety of the two countries. State controlling bodies for a long time “didn’t notice” the numerous cases where loads right in the Strait avoided paying duty, where there was mass reloading from vessel to vessel of oil products, sulphur, mineral fertilizers, construction and other materials by both the Ukrainian and Russian side. As a result, there has constantly been pollution, for example, from oil and chemicals, of the strait, as well as of the adjoining water zones of the Black and Azov Seas. Bearing in mind the fact that the Kerch Strait has shallow waters with a complicated regime of currents and meteorological conditions, especially during autumn and winter, the threat of pollution becomes several times greater. Therefore the disaster was foreseeable and inevitable, and yet, as it turned out, nobody was prepared for it.[18]

In general the low priority given to environmental policy resulted in the authorities being incapable of confronting the elements and effectively eliminating the consequences of the disaster. The ports did not have contemporary technical means for cleaning up the spilt oil; the work of the Russian and Ukrainian rescue services was poorly coordinated; and there were often misunderstandings and mutual accusations of inaction. The authorities, not having reliable technical means for monitoring the environmental situation, resorted to deliberate misinformation. For example, in the first days after the accident with the ships Volnogorsk, Nakhichevan and Kovel which were carrying sulphur, the Russian and Ukrainian Ministers of the Ministry for Emergencies reported that the sulphur on boards was in hermetically sealed containers. They asserted that Ukrainian divers had examined the containers, that the lids were not damaged and that therefore there was no question of pollution to the area. However, on 19 November a report appeared on the Ministry for Environmental Protection website stating that according to the results of the divers’ examination of the Kovel and Nakhchevan, the boats had been found to have holes, the roofs to the hold were ripped, the cargo had no packaging resulting in the sulphur being brought by the current into the sea environment.[19]

Aside from verbal statements from the Deputy Prosecutor General T. Kornyakova, there were no official commentaries regarding the criminal investigations initiated by the Prosecutor General’s Office and the Environmental Protection Prosecutor over maritime pollution as a result of the disaster (Article 243 of the Criminal Code). Ukraine’s Ministry of Foreign Affairs also refrained from any commentary on the results of their own request to the Russian MFA for information about the type and amount of dangerous substances being carried by the boats which sank.

Some official media outlets also ignored the disaster in the Strait, while the information available in November on the Ministry for the Environment website, as well as two information agencies – UNIAN and Interfax – Ukraine, was reasonably up-to-date, although without in-depth analysis of the situation. Some reports on the sites of the Ministry for Emergencies and Ministry for the Environment were contradictory.

Examples where the public were misinformed and attempts to obstruct the work of volunteers were seen during the clean-up efforts. After activists from the organization “Environmental Watch on the Northern Caucuses” and “Save Taman” made public information demonstrating criminal inaction over eliminating the consequences of the disaster (the work of cleaning the shore and saving birds was only carried out by Greenpeace), the Russian authorities imposed strict restrictions on access to the Taiman Peninsula in the area where there had been the worst oil pollution. This meant that not only members of environmental organizations were unable to get there, but also journalists[20]

In December 2007 60 Ukrainian environmental organizations addressed a collective statement to the President, Cabinet of Ministers, the National Security and Defence Council, the Prosecutor General’s Office and the Security Service [SBU] regarding the reasons and consequences of the disaster in the Kerch Strait.[21].  The statement stresses the need to do the following:

·  ensure financing and the technical means for eliminating the pollution residue in the sea and on the shore;

·  create a special inter-departmental commission to investigate the cause of human death and pollution of the environment; to make prognoses about how the environmental situation will develop; assess losses and further expenditures; determine which public officials were responsible for the disaster and inadequate preparation for eliminating the consequences; as well as to establish the grounds for receiving compensation in keeping with the universally recognized environmental principle “the polluter pays”;

·  speed up completion of procedure for delimiting the water area of the Azov Sea and Kerch Strait;

·  carry out constant environmental and sanitary-epidemiological monitoring of maritime ecosystems and the coast;

·  break down the criminal transport centre in the Kerch Strait, stop the practice of raider reloading in the Strait and carry out the necessary check of all Ukrainian ports, informing the public of the results of such checks;

·  ban the transportation of dangerous cargo in accordance with the International Convention on Preventing Pollution from Ships (1973), to which Ukraine is a signatory;

·  reject plans to build new maritime terminals (Tobechyk, Feodosia, Donuzlav, Sevastopol) as unnecessary and dangerous; modernize existing ports.

Russian environmental organizations addressed similar appeals to their authorities.

The disaster in the Kerch Strait was unfortunately not the only emergency in 2007 which involved sea pollution.  During the summer, for example, more than 70 tonnes of oil spilt from holes in the body of the ship «Cma CEN Aegean» (under Liberian flag). Fortunately the bulk of the dangerous release was localized by the ship crew and port staff making it possible to avoid a major environmental disaster. The port management calculated the environmental damage caused and the court ordered the ship’s owner to pay 24 million USD. The ship was seized pending payment under an order issued by the Prymorsky District Court in Odessa. As a result, the damages were paid in full. The owner also had to pay the port more than a million dollars for collecting and localizing the oil spill..[22]

 

1.2.6. Disasters at Donbas coal mines linked with methane explosions

On 18 November 2007 in Zasyadko Mine in Donetsk, at a depth of one kilometre, there was a gas explosion which caused a serious fire killing a hundred men. This was the worst disaster at a coal mine in the Donbas area for the last 50 years. Over the last decade, explosions of methane gas at the Zasyadko Mine have claimed the lifes of 208 miners, with another 177 injured. The disaster was the fifth since 1999.in the others on 24 May 1999 50 men died and 49 were injured; 19 August 2000 55 men died and 33 were injured; 31 July 2002 – 20 men died; 20 September 2006 – 13 men died and 62 were injured..[23]

The Zasyadko Mine is one of the largest in Ukraine. The men work at a level from 900 to 1320 metres. The conditions for extracting coal at the mine are extremely complex, with all layers at danger of methane release, while two are also dangerous in terms of self-combustion. This is even with the Zasyadko mine having the most powerful safety system of the mines and being the only Donetsk coal mine where there is a system of detecting methane and using it for energy.

For some time, therefore, the possibility of closure hung over the mine since its own coal supplies were exhausted. However the development of the Kalmiusk mine and new construction have, specialists estimate, increased the mine’s lifetime by another 50 years. Despite the constant problems with the conditions for extracting coal as they went deeper down, the constant increase in mining pressure, high level of gas, and other adverse factors, the Zasyadko Mine’s output increases each year.

Yefim Zyagilsky, the owner of the mine, told the newspaper “Weekly Mirror” that the expert commission had not reached a final conclusion about the cause of the explosion. He maintained that all requirements of normative documents regulating safety had been observed. The commission had, he said, not found any cause for criticism of the mine’s management. He added that the explosion had probably been caused by the explosion of an as yet unknown combination of methane, ethylene, and heavy carbonates. The presence of these gases in a certain, as yet not established, proportion, leads to a reduction in the explosion threshold of the combination of gases in the air. Under normal conditions the critical concentration of methane is over 4.5%. If gases the contents of which are not specified are added, the threshold can fall radically. The investigation into the specific features of the geological conditions at the mine is continuing.[24]

Yet the Ministry for the Mining Industry, the Ministry for Emergencies and the Ministry for Environmental Protection have none of them placed any official information on their websites about the environmental factors of the accidents at Donetsk mines. Unfortunately, the official results of the government commission on the reasons for the latest explosions at the mine have yet to be published

The preliminary conclusions of the government commission were made public by the Prosecutor General’s Office.[25]  The accident was due to work being carried out where there was a dangerous build-up of methane, to inadequate control over its concentration and over explosion prevention with electrical equipment. The reasons for the recurring explosions were breaches of the procedure for extinguishing fires by the person in charge of this and those in charge of the rescue service. A criminal investigation has been initiated and is underway.

There have not been any specific steps taken to follow up statements by high-ranking public officials regarding the possibility of stopping or significantly reducing coalmining at that mine due to the particularly dangerous geological conditions.

The latest explosions at Donetsk mines drew attention to other issues of environmental safety linked with mining, for example, the activating of secondary manmade processes and the seeping of mine gases to the service. At present a considerable part of Donetsk and the territory of other mining cities are located right above mines. One sees more and more often earth subsidence and destruction of buildings. Methane and water seep into the basements of buildings. It is clear that just closing the mines will not solve these problems. Furthermore, at least on some of the mines at present attempts are being made to pump out mine gases and carry out geophysical monitoring. Stopping this suddenly could heighten the level of danger and create an entirely unpredictable situation.[26]

 

2.  The right of access to information on environmental matters

Effective defence of environmental rights depends on a good level of established democratic traditions and development of civic society. It is these factors which ensure that each person has free access to information about the state of the environment, provide ways for people to take part in environmentally important decision-making and guarantee the effectiveness of court procedures for defending the right to a safe environment.

During 2007 a group of environmental and human rights organizations carried out monitoring of how the right of access to environmental information was being adhered to Around 300 information requests were sent to: the Cabinet of Ministers; the Verkhovna Rada; the Human Rights Ombudsperson; the Prosecutor General and regional prosecutor’s offices, the Ministry for Environmental Protection [MEP], the Ministry of Health and their regional departments; regional councils and State administrations. Monitoring was also carried out of the media and official reports issued by the authorities.

The main conclusion reached was that violations of the right to environmental information in Ukraine are of a systemic nature with causes which go deep.  These include: the failure of many normative legal acts to comply with international standards; inadequate practice in applying the law; the lack of a sense of responsibility to the public of those in authority; the generally low priority given to environmental issues in State policy; poor monitoring of the environmental, and others. The working group encountered enormous difficulties trying to receive information. In many cases there were problems obtaining specific information about the environmental impact of those enterprises deemed the worst polluters of the environment; the use of environmental protection funds; the impact of environmental accidents and problems of public health; observance of environmental legislation, and others. The quality of the responses with all but a few exceptions left a great deal to be desired. All too often one saw attempts with no legal justification to refuse to provide answers to information requests; to avoid giving answers; to not give substantive responses; to give partial information, and so forth.

The results of the monitoring show that the least forthcoming with environmental information are the prosecutor’s offices. bodies of local self-government and Ministry of Health departments.

Yury Babinin, the head of “Public Watch” asked the Ministry of Health Department for the Zaporizhya region for data on the health of victims of the Chernobyl Disaster among residents of the region registered in priority medical care groups. The Ministry of Health’s department refused to provide the information, stating:

“According to Article 37 of the Law on Information, information is for official use only and cannot be used to exercise the rights and interests of a Ukrainian citizen and publishing beyond its boundaries, particularly with interpretation of the report on the observance of human rights in Ukraine  [this does not appear to derive from the said law – translator].  According to Article 37 of the Law on Information, “All organisations collecting personal information relating to the person shall, prior to handling this information, have the relevant databases officially registered, in keeping with procedures established by the Cabinet of Ministers of Ukraine”

Yet according to the interpretation by the Constitutional Court of Articles of the Law on Information[27] confidential information includes information about a person (education, family status, religious believes, state of health, data and place of birth, property owned and other personal data. Clearly Mr Babinin’s aim was not to receive confidential information about the state of health of individual people which would indeed be an invasion of their privacy.  He asked for depersonalized statistical data which would indicate any adverse impact of environmental factors on the public health. This information is on open access and must be provided in response to information requests.

Numerous examples of unwillingness to provide information were given by some regional councils and State administrations, the Ministry of Health and its regional divisions and the Ministry of Justice.  More than half of the information requests were not properly met.  The Cabinet of Ministers, the Presidential Administration, as well as regional State Administrations and councils usually passed information requests on to departments of the Ministry for Environmental Protection, although the questions were far from always under the jurisdiction of the latter.

The authorities clearly still have problems comprehending freedom of information and the need for openness in State policy and accountability to the public who have delegated them to this role. There remains a subconscious mistrust of independent civic activity and especially that aimed at ensuring transparent and controllable activities by the authorities.  Another stereotype which is proving resilient to change is the idea some public officials have that they are entitled to decide themselves which information they will divulge and which they won’t.

There is no section for environmental information on the websites of the Cabinet of Ministers or of any Regional State Administrations. Monitoring of general access State printed and electronic media outlets shows that the topic of protecting the environment, environmental rights and sustainable development is far from being a priority on them. In the majority of regions there are no State-run sources of environmental information.

Fortunately, there are some exceptions. The State Department for the Environment and Natural Resources for the Zaporizhya region publishes a reasonably decent level popular printed report on the state of the environment in the region “Land beyond the rapids”.

Aside from the MEP website, printed publication and web pages of individual regional structures, there are no specialized sources of environmental information. The MEP website is poor from the point of view of information, and it would be hard to find a government site which is more inert and functionally inadequate. There are still no websites for the State Departments for the Environment and Natural Resources in the Volyn, Dnipropetrovsk, Zhytomyr, Odessa, Rivne, Kharkiv, Kherson and Chernihiv regions, as well as in Kyiv.  For some months in 2007 the website published an MEP information bulletin however this was restricted to organizational issues of the functioning of the Ministry.

Virtually nothing has been done to create a nationwide computerized system for ensuring access to environmental information which according to Article 10 of the Law “On protection of the natural environment”, the Law “On local self-government in Ukraine”, and resolutions by the Verkhovna Rada and Cabinet of Ministers should have been functional as far back as 2005.  It proved, moreover, impossible during the information request campaign, to find out how the process of creating this network was going, in fact whether it was happening at all and who was responsible for it. And finally what this network would entail when there have been so many decisions passed yet nothing done.

Access to information regarding the change in climate and climate protecting projects is also unsatisfactory. According to the United Nations Framework Convention on Climate Change, Ukraine must provide annual inventories on greenhouse gas emissions in Ukraine, as well as national reports on climate changes in Ukraine. These are the main sources for informing the Ukrainian public and international community on estimates of how the Framework Conference is being implemented. Unfortunately over recent years these commitments have not been properly fulfilled.

Ukraine’s international commitments with regard to project designs envisage a section on environmental impact assessment and another on the results of public hearings. Project designs being considered must be published 30 days in advance. We would note that the design documentation is published on the UNFCCC in English on registration on registration of the project designs with the Ministry for Environmental Protection.

The practice of publishing information about project designs according to Kyoto Protocol mechanisms has long been established in European countries. In Ukraine information was not provided even in response to numerous information requests from civic organizations during 2005-2007.  The concealment of information contributed to the spread of corruption and approval of project designs which possibly do not meet all the necessary criteria.  Environmental groups sent over 50 appeals in this connection to the highest bodies of government, including the Cabinet of Ministers, the Ministry for Environmental Protection, the National Security and Defence Council and the Prosecutor General.

In February 2008 the National Ecological Centre and the Environmental and Humanitarian Organization “Zeleny svit” sent yet another appeal to the MEP with regard to ensuring free access to environmental information about joint implementation project designs in accordance with Kyoto mechanisms.  The appeal expresses concern over the fact that during 2006 and 2007 the management of the MEP failed to ensure free access to environmental information regarding joint implementation project designs giving as their reason (which we consider unacceptable) the technical shortcomings of their own official Internet page. The civic organizations stressed the need within a short period of time to create the conditions for full publication of information about joint implementation project designs on the MEP website. The appeal suggested that until such publication was ensured, the Ministry should refuse to provide letters of support for these project designs.  The hope was expressed that the new leadership of the Ministry for Environment Protection would prove capable finally of organizing normal technical backup for the functioning of its own website. If for any reason in the near future that was impossible to achieve, then the Working group on climate change could offer their own site for placing the information http://climategroup.org.ua. If however, the MEP continues to shirk its duty to ensure to environmental information about joint implementation project designs, a complaint will be sent to the Secretariat of the UN Framework Convention on Climate Change.

The Ministry for Environmental Protection finally reacted to the public call. In March 2008 you could already read joint implementation project designs awaiting examination on their website.[28]  Open access to information will give the chance for interested parties to check whether a particular project design complies with all necessary norms and, if an adverse impact on the environment is predicted, send commentaries or proposals to reject the project.

In 2007 the Lviv “Bureau of Environmental Investigations” received a copy of a formerly unknown MEP Order № 470 from 25.11.2004 “On brining into force a List of Confidential Information”, passed in implementation of the Cabinet of Ministers Resolution № 1893 from 27.11.1998. “On approving instructions on procedure for recording, storing and using documents, cases, publications and other physical sources of information which contain confidential information in the possession of the State”. The original List of Confidential Information was supplemented by an Order from 3.04.2006 № 158 “On amendments to Order of the Ministry for Environmental Protection from 25.11.2004.”

It is interesting that up till then the texts of both Orders had not been available on the MEP website. It was impossible to find them using the search systems “Legislation” of the Verkhovna Rada and “League – Law”. It transpired that the Orders had not been registered with the Ministry of Justice.

These MEP Orders make it possible to significantly limit access of the public to certain types of environmental information, including to:

­  material from inspections (checks) of institutions, organizations and enterprises within the Ministry for Environmental Protection;

­  information sent to law enforcement agencies on the results of such inspections (checks);

­  information on dealing with environmental issues with trans-border rivers (the Danube Basin, the Western Bug, the Siversky Dinets), including with countries of the European Union;

­  regulation of environmental issues concerning biologically active (poisonous, infectious) substances, genetically modified organisms which can be used as biological weapons;

­  separate conclusions from State environmental impact assessments;

­  information about the technical characteristics of hydro-technical structures;

­  information concerning the functioning of the Russian Federation Black Sea Fleet on Ukrainian territory;

A request was sent to the Ministry of Justice that they examine whether these MEP Orders are in compliance with the provisions of the Constitution, laws and international conventions.[29]. The Ministry replied that according to Article 1 of Presidential Decree No. 493 from 3 October 1992 “On State registration  of normative legal acts of ministries and other executive bodies”, registration is required for normative legal acts issued by ministries, other executive bodies, bodies of economic management and control, which touch on the rights, freedoms and legitimate interests of citizens or which are of an inter-departmental nature. Paradoxically, taking this norm of the decree into consideration, the Ministry of Justice draws the conclusion that the Orders are not liable for State registration. Are those in charge at the Ministry of Justice unaware of the right of access to environmental information?

Many environmental organizations consider that the content of both MEP Orders are in breach of the Ukrainian Constitution (Article 50); the Aarhus Convention (Article 4), the laws “On the protection of the natural environment” (Articles 9, 10) and “On information” which guarantee each person the right to free access to information on environmental matters and information, the concealment of which could endanger life and health. The restriction of this right may only be imposed by law. In view of this, the above-mentioned MEP Orders must be revoked or considerably reviewed.

As we see, there are major problems in the development of a State system for providing environmental information and State safeguards of free access to environmental information. There are still no subdivisions within the authorities and bodies of local self-government for systematically and effectively implementing information policy on environmental matters.  At the same time, in the process of endless restructuring of the Ministry for Environmental Protection, there has also been no institutional and resource development of precisely those subdivisions responsible for providing environmental information. MEP officials in many cases demonstrate a lack of understanding of European principles of freedom of information, an unwillingness to adhere to the spirit of the Aarhus Convention and their own inept simulation of implementation of the Convention in Ukraine.

Unfortunately the practice of applying to the courts, to bodies of the State Judicial Administration, the prosecutor’s office and the Ministry of Internal Affairs (MIA) demonstrated the problems in gaining access to statistical information about violations of environmental rights and crimes against the environmental. It was virtually impossible to receive information in response to our formal requests regarding the number of criminal investigations initiated under the collection of Articles of the Criminal Code “Crimes against the environment”, the number submitted to the courts, as well as regarding the number of cases where the prosecutor’s office had appeared in court on the side of members of the public whose environmental rights had been infringed as the result of the actions of inaction of the authorities. In the majority of cases the prosecutor’s offices refused to provide information or referred those seeking the information to offices of the State Committee of Statistics.

However this information was partially published in the Report from the Prosecutor General’s Office “On the level of lawfulness in the country in 2007”, submitted to the Verkhovna Rada in accordance with Article 2 of the Law “On the prosecutor’s office”. The Prosecutor General’s Office reported that during 2007 940 criminal files on environmental crimes had been submitted to the court.   Over 23 thousand officials had been held to answer in connection with prosecutor’s office responses, with compensation of nearly 182 UAH being paid.  During 2007 the courts had examined 2, 782 (against 3, 444 in 2006) compensation claims for damages caused through infringements of legislation on protecting the environment. Of these 1, 993 (against 1, 480 the year before) had been allowed.[30]

According to figures from the State Judicial Administration (SJA), courts considered 1, 061 cases under Article 236-254 of the Criminal Code, with sentences passed in 800 cases. The overwhelming majority were crimes involving unlawful felling of trees, hunting and fishing.

However we are forced to note the generally low level of the section of the information from the Prosecutor General’s Office concerning protection of the environment. The numbers given in many cases are at variance with data published previously by the Ministry for the Environment. For example, the Prosecutor’s Office states that in 2007 more than 22 million tonnes of toxic wastes (of class II level of danger) had accumulated. The Ministry for Environmental Protection, on the other hand, in its draft for the National Report on the State of the Environment for 2004 writes of 2.4 million tonnes of this class. It is unclear how one can explain the creation in three years of 20 million tonnes of toxic substances. To cite another example, the Prosecutor’s figures estimate the percentage of emissions from vehicles to be 60% of the overall amount of emissions into the atmosphere in Ukraine. In the above-mentioned report, MEP gives a percentage of 33% for 2004. What is the reason for such glaring discrepancies in the estimates? And how confident can one be of the “professionalism” of such Prosecutor General’s assessments as the following: “excessive concentration in the atmosphere of carbon monoxide leads to the destruction of the Ozone Layer and increases the influence of radiation of the territory and illness among the population?

Perhaps the only information request regarding access to this statistical information which can be considered to have been fully answered was a letter from a member of the environmental and humanitarian organization “Zeleny svit” to the State Department of Statistics. As a result information was obtained for 2006 processed on the basis of information from the Prosecutor General’s Office, the MIA, and the State Judicial Administration[31].  According to SJA, in overseeing adherence to the laws on protection of rights and freedoms, the prosecutor’s office initiated 1, 593 criminal investigations on environmental matters and submitted to 873 criminal prosecutions to the court.   The figures from the Prosecutor General’s Office for 2006 give 4, 774 applications from the public on environmental matters having been considered. However the number of those applications allowed was extremely small – a mere 568. There is no information at all about cases where prosecutor’s offices have appeared in court on the side of members of the public whose environmental rights have been infringed as the result of the actions of inaction of the authorities.

  The Verkhovna Rada, Cabinet of Ministers and Human Rights Ombudsperson have effectively distanced themselves from any role in overseeing the observance of citizens’ environmental rights.

  Since, pursuant to Article 28 of the Law “On information”, the “State shall exercise control over information access modes <> and the Verkhovna Rada may request and receive from government establishments, ministries, and departments reports containing information about their activities to provide information to the concerned person”, participants in the civic monitoring campaign sent an information request in January 2008 to the Speaker of the Verkhovna Rada. It asked for information, among other things, on the following:

- which main measures of State control over ensuring access to information had been carried out by the Verkhovna Rada in 2006 and 2007;

- : from which ministries in 2006 – 2007 had the Verkhovna Rada received reports containing information about their activities in ensuring access to information, where and how one can see these reports;

-  which measures have been carried out or are planned by the Verkhovna Rada aimed at ensuring implementation within current legislation of the provisions of the Aarhus Convention, as well as control over its observance in the context of access to environmental information;

- when at long last will the Verkhovna Rada Resolution “On informing the public on environmental matters” be enforced with respect to the creation of a “nationwide computerized system for ensuring access to environmental information”.

A letter was received from the Committee on Environmental Policy[32], which basically failed to answer any of the questions or twisted concepts. The letter states that “The Committee keeps the issue of access to environmental information under constant control and considers the state of affairs to be entirely satisfactory. It then reports that “the Ministry for Environmental Protection has provided the Committee with a report on its work in response to appeals from members of the public for 2006-2007. During 2007 1, 233 written appeals on environmental matters were sent to the central offices of the Ministry, this being 25.7 percent more than in 2006. Each month the Ministry provides information on the results of work in response to appeals to then be placed on the website in the section “The Government and the public”.

Our monitoring of this government website[33], however, found no trace of environmental information.

We can cite another example.

High-level government officials failed to respond appropriately to the open appeal from the leaders of 14 environmental and human rights organizations regarding inadequate implementation in Ukraine of provisions of the Aarhus Convention. The appeal was addressed to the President, the Speaker of the Verkhovna Rada, the Prime Minister, the Minister of Justice and the Minister for Environmental Protection and posted on the “Maidan” website and KHPG[34]  The President’s Secretariat and the Verkhovna Rada as usually passed it on to the Cabinet of Ministers and the latter – to the Ministry for Environmental Protection. As a result, formal responses were received which failed to address any of the fundamental comments and demands regarding Ukraine’s implementation of the Convention.

The Human Rights Ombudsperson, in breach of the law, has not published annual reports for 2005-2007. In the previous reports, the right of access to environmental information was not given proper attention. In the second annual Report (2003), there is no section of observance of environmental rights. In the sections on freedom of speech and the right of access to information there is also no mention of access to environmental information. Nor is this addressed in the Ombudsperson’s Bulletin. It should also be noted that the last issue of this Bulletin appeared back in 2003. Observance of environmental rights has not been mentioned in any way in official statements made by the Ombudsperson over recent years.

Despite the fine-sounding declaration that “defence of human rights to freedom of opinion, free expression of ones views and beliefs, freedom of assembly, gathering , storing, using and disseminating information are priority areas of the Human Rights Ombudsperson’s work[35], the answers from the Ombudsperson’s Secretariat to information requests and appeals from civic organizations can also not be considered satisfactory.

In response to an information request from the authors of this report, the Secretariat failed to notify which information or what assessment the Ombudsperson had given the National Report for 2007 on Implementing the Aarhus Convention in Ukraine. The Secretariat also avoided answering the question as to why the Verkhovna Rada had not been presented with Reports of the Human Rights Ombudsperson for 2005 and 2006. Instead, in its response (22.01.2008. № 11-89/2562-07-14) it states that “at the present time work is underway on the Report of the  Human Rights Ombudsperson “On observance and protection of human rights and freedoms in Ukraine” for 2005-2007, which are planned to be presented to the Ukrainian parliament in the first quarter of 2008. a separate section in this Report is devoted to environmental rights.

Thus, those carrying out the monitoring of access to environmental access are entitled to report the inadequacy of all parties, both those bodies who should be obtaining information and acting as communicators, and among those using the information. There is a vicious cycle in which the information flow surrounding the individual today do not form deep knowledge about the environment and the environmental consequences of the his or her own activities and reality, do not stimulate a culture of harmonious relations with the natural and social environment and do not determine an environmentally friendly and humane style of life. As a result, even the information collected in the course of our monitoring, , fragmentary as it may be, does not arouse interest in those directly concerned. In such conditions, people do not develop an awareness of their own right to a safe environment and readiness to defend this. All of these phenomena are in the final analysis factors indicating infringements of the right to an environment which is safe for life and health.

The need remains to lobby for a system of legal education on issues linked with the Aarhus Convention for civil servants, as well as representatives of other interested parties connected with the exchange of information and decision making on environmental matters.

New laws need to be drawn up, as well as amendments and additions to a number of current laws, improving modes for applying the law in order to ensure observance of standards of access to information on environmental matters enshrined in the Constitution, the Aarhus Convention and other international documents. The public and international organizations urge the Ukrainian authorities to achieve this. This requirement is, for example, stressed in the Parliamentary Assembly of the Council of Europe’s Resolution “Honouring of commitments and obligations by Ukraine” from 5 October 2005 № 1466.

Finally, given the fact that the authorities are failing to demonstrate any systematic information policy on environmental matters, alternative possibilities need to be drawn up for civic networks of environmental information.

 

3.  Public participation in decision-making on environmental matters

3.1.  Public participation in drawing up a Combined National Report for 2007 on Implementation of the Aarhus Convention in Ukraine

In June 2008 it will be 10 years since Ukraine signed the Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention). Despite the fact that with the Verkhovna Rada’s ratification in 1999, the Convention became a part of domestic legislation, one cannot speak of its provisions being properly implemented.  Amendments have only been made to four laws, namely: “On protection of the natural environment”; “On environmental impact assessments”; “On local self-government in Ukraine” and to the Code of Administrative Offences.  Changes clearly required to other laws, including the Law on Information have yet to be implemented.

The Second Meeting of the Parties to the Aarhus Convention in Almati (2005) found that Ukraine, together with Kazakhstan and Turkmenistan, were failing to adhere to the Convention[36]. Yet the critical conclusions of the United Nations Economic Commission for Europe (UNECE).and the Meeting of the Parties to the Aarhus Convention have been consistently concealed from the Ukrainian public by the leaders of previous governments and the Ministry for Environmental Protection. In June 2008 the Third Meeting of the Parties to the Aarhus Convention will be held in Riga. We would note that in the last two and a half years the Government has still not implemented the recommendations from the Second Meeting that Ukraine:

-  bring its legislation and practice into line with the provisions of the Convention;

­  no later than the end of 2005 present the UNECE Committee on Observance of the Convention with a Strategy Plan for integrating its provisions in domestic legislation, together with the relevant schedules, practical mechanisms and procedure for enforcing implementing legislation..

Work continued during 2007 within the Ministry for Environmental Protection on preparing a draft Combined National Report for 2007 on Implementation of the Aarhus Convention. This was also lacking in openness, genuine willingness to involve civic organizations and to give a critical assessment of the current state of affairs as regards observance of the Convention’s provisions.

On 26 September 2007 notification appeared on the MEP website that “in order to consult with the public regarding the National Report for 2007 on Implementation of the Aarhus Convention in Ukraine a letter was sent by email in August 2007 inviting civic organizations with an environmental focus to put forward proposals”. There was notification of the existence of MEP Order from 25 November 2004 № 469 “On preparing Ukraine’s national report for the Second Meeting of the Parties to the Aarhus Convention”, however the text of the Order was not available on the MEP website and it was not possible to find it through the Verkhovna Rada search machine “Legislation”.

The Environmental and Humanitarian Organization “Zeleny Svit” for this reason twice sent information requests to the MEP[37]. They asked for information including the following:

­  where and how one could read the documents and decisions in accordance with which the draft National Report was being prepared, including the above-mentioned MEP Order;

­  how to find assessments of previous National Report for 2007 on Implementation of the Aarhus Convention in Ukraine by the UNECE Compliance Committee and the Meetings of the Parties to the Aarhus Convention;

­  which organizations were sent the above-mentioned letter from the Ministry for Environmental Protection, and how;

­  what stage the preparation of a National Strategy Plan for Implementation of the Convention is at.

Unfortunately the Ministry for Environmental Protection did not meet the request for information in full, justifying this in the following fashion: “in according with the Regulations on Provisions for Providing Environmental Information[38], a request for environmental information has no more than three questions on one environmental issue”[39]. As a result no substantive answer was provided for any of the above-mentioned questions.

Thus, with respect to drawing up a draft Report, it has not proved possible to overcome mutual distrust between officials of the Ministry for Environmental Protection and civic leaders. The majority of the latter are inclined to think that it would be better to prepare an alternative report on implementation of the Convention presented by organizations of civic society.

In January 2008 an open appeal from a group of environmental and human rights organizations regarding inadequate implementation in Ukraine of provisions of the Aarhus Convention, addressed to high-level government officials, was placed on the Maidan website.[40]  The leaders of the 14 organizations which signed the appeal stressed the need for the following:

-  Draw up within a short period Strategy and Action Plans on integrating the provisions of the Aarhus Convention into domestic legislation with this including practical mechanisms; procedure and measures for increasing application in law;

-  The Cabinet of Ministers, Verkhovna Rada and Presidential Secretariat should thoroughly analyze the degree to which government bodies are adhering to legislation on access to information, public participation in decision-making and access to justice in environmental matters, and inform the public about the results of such an analysis;

-  Accelerate preparation of draft laws in keeping with modern principles of access to information, including a new version of the Law “On information”;;

-   accelerate preparation of Cabinet of Ministers resolutions establishing specific procedure for ensuring access to environmental information and public participation in decision-making;;

-  make amendments or revoke current normative legal acts  which do not comply with Aarhus Convention standards on access to environmental information, public participation in decision-making and access to justice in environmental matters

-  For the purpose of general coordination, create a National Commission on Monitoring Adherence to the Aarhus Convention, involving representatives of civic organizations;

-  Envisage the creation of infrastructure relevant for providing environmental information, as well as educational and awareness-raising activities, including those for public officials and officials from bodies of local self-government, judges, deputies and members of the public;

-  Publish in Ukrainian in the official media channels the main documents of the UNECE Committee on Compliance with the Aarhus Convention, and the Meetings of the Parties, as well as all decisions concerning Ukraine.

 

3.2. Public participation in drawing up a Strategy Plan for Implementing the Aarhus Convention

As mentioned earlier, the Government ignored the suggestions from the Second Meeting of the Parties to the Aarhus Convention in Almati –  that by the end of 2005 a Strategy Plan for integrating its provisions in domestic legislation finally be drawn up. With no conscious and systematic work being done on its preparation, and in fear of sanctions from the UNECE Compliance Committee, Ukrainian officialdom have resorted to an imitation of the process of strategic planning and to drawing up a quasi- Strategy Plan.

The process of decision-making on preparing the Strategy Plan is shrouded in a strange veil of secrecy. It is known that in June 2006 the Ministry for Environmental Protection informed the UNECE Compliance Committee[41] that the Ministry had “created a working group for developing a National Strategy for the implementation of the provisions of the Aarhus Convention in current Ukrainian environmental legislation”. Nothing is known about any normative act for creating this working group, who is on it, whether representatives of NGOs are included, or whether the Ukrainian Government is aware of its existence, or what the working group is actually working on.

It is interesting that the issue of drawing up this Strategy Plan is not given attention in the Combined National Report for 2007 on Implementation of the Aarhus Convention in Ukraine.

During 2007 the author of this section twice sent information requests to MEP asking what stage the preparation of a National Strategy for the implementation of the provisions of the Aarhus Convention in current Ukrainian environmental legislation was at[42]  In both cases the MEP failed to answer the question.

As mentioned already, the open letter from 14 environmental and human rights organizations suggested, among other measures, drawing up “Strategy and Action Plans on integrating the provisions of the Aarhus Convention into domestic legislation with this including practical mechanisms; procedure and measures for increasing application in law;”. Answers were received from the MEP[43] and the Verkhovna Rada Committee[44] which in no way even mentioned drawing up a Strategy Plan.

However on 20 February 2008 MEP put out information about the holding of consultations with the public on a project for a “Strategy Plan for implementing Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention) in Ukraine. The message stated that the draft Strategy Plan had been posted on the MEP website[45], and that consultations with the public were being carried out by the civic organization “Ukrainian Section of the International Union “Ekologiya lyudyny” [“Ecology of Man”] which had supposedly won a tender to draw up a plan and organize consultations within the framework of an Internet conference.


It remains unknown who took the decision to hold specifically this form of consultations with the public; who published notification of the tender and when; who prepared the scope for the tendered services; who will take decisions, and in what way, based on the results of the Internet conference; why specifically an Internet conference was chosen, and not public hearings. It is also unclear whether high-level bodies represented by the Government, Verkhovna Rada, the Human Rights Ombudsperson, the Secretariat of the President, and the Supreme Court will be taking place.  Why is the Ministry transferring all the responsibility from itself onto one individual civic organization, not wishing to hold public hearings in accordance with its own “Regulations on public participation in decision-making on environmental protection” (№ 168 from 18.12.2003)?  At the end of the day, why will the Government not hold public hearings on the basis of its own Procedure for holding consultations with the public[46]? Most importantly, will a “Strategy”, drawn up and passed according to such an almost conspiratorial scenario in any way bind the authorities to react?

Despite the fact that the Strategy drawn up by Ekologiya lyudyny” contains some good suggestions (for example, emphasis is placing on passing subordinate acts on implementation of the Convention, and specifically by the Ukrainian Government, and not the Ministry for Environmental Protection; creation of a coordination council under the Government on implementing the Convention, and others), in its format and content, the document cannot be considered a strategy plan. In general it creates the impression of a chaotic pile of good intentions. Even given this, the list of proposals on passing new laws and making amendments to current legislation seems incomplete. The section on improving access to justice is especially flawed.

Some proposals put by the authors of the draft seem incorrect from the legal point of view, for example, the adoption of a Cabinet of Ministers Resolution on approving “Provisions on access to justice where the public’s rights have been infringed in cases envisaged by the Aarhus Convention”. Some are unjustified as the proposal to introduce a National Environmental Protection Court. It is unclear what prevents the existing court structure from defending people’s environmental rights and how the envisaged court would prove more effective.

Therefore with full justification, a large number of civic organizations (“National Ecological Centre of Ukraine”, “MAMA-86”, the Ukrainian Environmental Association “Zeleny Svit”, the environmental and humanitarian association “Zeleny Svit”) declared their disagreement with the proposed format for drawing up the draft “Strategy Plan”, and its content, and have therefore called for a boycott of it

 

4.  The right of access to justice in environmental matters

The Law “On protection of the natural environment” guarantees the right of access to justice in environmental matters, exercised through lodging compensation claims with the court for damage caused to their health and property as a result of adverse impact on the environment.  Citizens may also appeal through the courts against the decisions, actions or inaction of the authorities and their officials if they believe these violate their environmental rights.

The best way of assessing the situation with access to justice is to look at current court cases.

The most prominent case in 2007 was the successful suit brought by A. Halkina and O. Malitsky against the Mykolaiv Regional Council calling for their decision on remove 27.72 hectares from the State-owned regional landscape park “Granite-Steppe Pobuzhya” and hand it over to Energoatom to be flooded as part of the Tashlyk Hydro Accumulating Power Station. The claimants were represented by lawyer O. Melen and specialist on reserve lands O. Derkach. The Central District Court in Mykolaiv concluded that the Council’s decision had not been legal, justified or sensible, and revoked it.

The Kyiv Environmental and Cultural Centre[47], together with the organization Ecopravo-Kyiv, demonstrated a number of successful court cases during the year.

The participants in the civic monitoring on access to environmental information also set several precedents for applying measures of administrative proceedings. Unfortunately, the courts far from always demonstrated willingness to uphold citizens’ rights and recognize the unlawfulness of refusals to provide answers and bind officials to give information requested. In several cases the courts were selective in their application of procedures of administrative proceedings.

A member of the environmental and humanitarian association “Zeleny Svit” in October and November 2007 lodged suits with the Chortkiv District Court over the failure by the Ternopil Mayor R. Zastavyny and the Environmental Protection Prosecutor for the Ternopil region O. Halytsky to provide answers to information requests.  Both suits called for their inaction to be declared unlawful. The court only agreed to examine the suit against the Ternopil Mayor. Yet with the suit against the Prosecutor’s office, citing Article 19 § 1 of the Code of the Administrative Justice, the court concluded that the case was not within the jurisdiction of the Chortkiv District Court and returned it, stating that the claimant should turn to the administrative court according to the location of the respondent, the Ternopil Inter-district Environmental Protection Prosecutor’s office.

However there were also court victories.

Activist from the organization M’ART [Youth Alternative] Serhiy Tanchak addressed an information request to the Zhytomyr Regional Prosecutor’s Office. He asked for information about the number of applications made to the regional prosecutor’s office on issues linked with defending their right to a safe environment; on the number of cases where the prosecutor’s office had appeared in court on behalf of people who had turned to them; on the number of complaints alleging violations of environmental legislation, as well as the number of criminal investigations under Articles 236, 237, 238, 244, 253 of the Criminal Code (the section of crimes against the environment). The prosecutor’s office refused to provide the information, stating that:

“According to Article 9 of the Law “On information”, each citizen is guaranteed free access to information which relates to him or her personally, except in cases envisaged by Ukrainian laws. In your letter you do not indicate how this information concerns you personally, and therefore it is not possible to provide you with the information. In addition, according to Article 24 of the Law “On State statistics”, statistical information of an inter-departmental nature does not need to be provided in response to information requests”.

In Serhiy Tanchak’s opinion, the prosecutor’s office’s refusal to provide information is unlawful. Each person has the constitutional right to freely gather, store, use and disperse information verbally, in written form or in any other way of their own choice (Article 34 § 2 of the Constitution). There is no requirement in Article 32 of the Law “On information” to explain how the information requested personally affects the person asking for it. All citizens therefore have the right to demand to see any document regardless of whether it concerns them personally, or not.

Serhiy Tanchak therefore lodged an administrative suit in which he called for the behaviour of the Zhytomyr Regional Prosecutor’s Office unlawful and for it to be ordered to provide the information sought. On 16 January 2008 the Novozavodsky District Court in Chernihiv allowed his suit. However since then the prosecutor’s office did not provide the information and appealed against the Novozavodsky Court ruling. Although the appeal was lodged with infringements of the time limit, the court of appeal agreed to examine it.

Experience of the monitoring project showed that sometimes there can be other means, besides the court, of defending the “right to know”. These were widely used by the Lviv civic organization “Earth’s Legion”. On encountering inadequate response to his information request, the Legion’s leader Volodymyr Prystula sent complaints to higher-level authorities, as well as to the prosecutor’s office, asking that official enquiries be carried out into failures to provide information, that the behaviour of the officials involved be declared unlawful, that they face disciplinary or administrative liability, and that they finally be forced to provide the information. After receiving the prosecutor’s letters, some of those who had refused to provide information, abandoned their far-fetched arguments and provided the answers sought.

However, what is most important is that neither the authorities nor the public understand to a sufficient degree that as manmade changes in nature become ever more rapid and the scale of environmental risks increases, so too does our responsibility, that of the authorities, of environmentalists, human rights activists and of the public. The authorities must demonstrate the political will to not only declare their commitment to legal standards, but on an everyday level scrupulously fulfil their commitments before the international community, and all those on Ukraine’s land, living now and yet to be born.

 

5.  Recommendations

1)  Draw up within a short period Strategy and Action Plans on integrating the provisions of the Aarhus Convention into domestic legislation with this including the relevant timescale, practical mechanisms and procedure for bringing implementing legislation into force.

2)  The Ministry for Environmental Protection should draw up, submit for review to the Verkhovna Rada and publish “National Reports on the state of the environment in Ukraine” for 2007-2008.

3)  The Cabinet of Ministers should ensure implementation of Article 10 of the Law “On protection of the natural environment” with regard to creating a nationwide computerized system for ensuring access to environmental information.

4)  In implementation of the Verkhovna Rada Resolution “On informing the public about issues concerning the environment” from 4 November 2004, ensure the posting on the MEP website of a quarterly information and analysis review “The state of the environment in Ukraine.

5)  MEP should submit for the consideration of the Cabinet of Ministers a draft Resolution on access to environmental information and public participation in decision-making on environmental matters. .

6)  Bring into compliance with the Constitution (Article 50), the Aarhus Convention (Article 4), the Laws ““On protection of the natural environment” (Articles 9, 10), “On information”, the content of the MEP Orders “On brining into force a List of Confidential Information”. Ensure open access to environmental information contained in:

­  the material of checks on institutions within the Ministry for Environmental Protection;

­  information sent to law enforcement bodies on the results of checks;

­  information on regulation of environmental issues concerning trans-border rivers;

­  information on regulation of environmental issues involving biologically active (poisonous, infectious) substances, genetically modified organisms which can be used as biological weapons;

­  results of State environmental impact assessments;

­  environmental information on the functioning of the Russian Federation Black Sea Fleet on Ukraine’s territory;

7)  The Human Rights Ombudsperson should have a section on environmental rights in the next Report.

8)  The State Departments for the Environment and Natural Resources in the Volyn, Dnipropetrovsk, Zhytomyr, Odessa, Rivne, Kharkiv, Kherson and Chernihiv regions, as well as in Kyiv, must issue annual reports on the state of the environment for 2006-2007.

9)  Create websites for the State Departments for the Environment and Natural Resources in the Volyn, Dnipropetrovsk, Donetsk, Ivano-Frankivsk, Kherson and Khmelnytsky regions.

10)  On the development of the National Nature Park “Hutsulshchyna”

­  ensure full implementation of the Presidential Decree “On creating the national natural park “Hutsulshchyna”;

­  to demand from law enforcement agencies that an end be put to violations of environmental protection legislation on territory which falls within the national park;

­  achieve an end to unlawful pressure on the park personnel..

11)  Ensure scientifically justified restoration of forest areas in the Black Sea region, the Crimea, Donbas destroyed by fires in 2007.

12)  With regard to eliminating the consequences of the disaster in the Kerch Strait:.

­  provide funding and the technical opportunities for dealing with the consequences;

­  speed up completion of procedure for delimiting the water area of the Azov Sea and Kerch Strait;

­  stop the practice of raider reloading in the Strait;

­  ban the transportation of dangerous cargo in accordance with the International Convention on Preventing Pollution from Ships (1973), to which Ukraine is a signatory.



[1] By Oleksandr Stepanenko, member of the UHHRU Board

[2] Decision of an extended session of the Panel of the Ministry for Environmental Protection from 01.02.07. «On summing up the work of the Ministry in 2006 and the main tasks for 2007”.

[3] Draft of the “National Report on the State of the  Environment in Ukraine in 2004”, Kyiv: 2006.

[4] Expert report of the State Committee of Ukraine from 20.03.2007 № 66 “Emissions of harmful substances into the atmosphere from stationary sources of pollution in 2006”.

[5] Decision of an extended session of the Panel of the Ministry for Environmental Protection from 01.02.07. «On summing up the work of the Ministry in 2006 and the main tasks for 2007”..

[6] “National report on the quality of drinking water and state of the drinking water supply system in 2005” – Rivne, 2006.

[7] “Study of policy and legislation in the area of control over chemical substances in Ukraine” – VEGO “MAMA-86” with the support of the International Chemical Secretariat (Sweden), Kyiv – 2006.

[8] Draft of the “National Report on the State of the  Environment in Ukraine in 2004”, Kyiv: 2006..

[9]  Website of the environmental and humanitarian association “Zeleny svit”  http://greenworld.org.ua/index.php?id=1194598134.

[10] Website of the environmental and humanitarian association “Zeleny svit”: http://greenworld.org.ua/index.php?id=1196534875

[11] News from the Ministry for Environmental Protection website “Contamination of the territory at the railway junction Ozbhydiv – Krasne  http://menr.gov.ua/cgi-bin/go?node=1170.

[12] Ministry for Emergencies website : http://mns.gov.ua/news_arhiv.php?id=2&month=07&year=2007&bt_go=%CF%EE%EA%E0%E7%E0%F2%E8.

[13] «Forest fires are our common misfortune” // Report from the Press Secretary of the Republic Forest Committee of the Crimea from 9 August 2007 on the official sites of the State Forestry Committee of Ukraine

http://dklg.kmu.gov.ua/forest/control/uk/publish/article?art_id=43215&cat_id=32888.

[14] «The fight against major forest fires continues in the Kherson regions // // Ministry for Emergencies website http://mns.gov.ua/news_show.php?news_id=5776.

[15]«The desert is returning. This year forests burned 367 times in the Kherson region // the newspaper “Weekly Mirror”, № 32 (661), 1 — 8 September 2007, http://dt.ua/1000/1550/60326.

[16] The European Commission: The scale of the catastrophe in the Kerch Strait has been overestimated  // The site of the Crimean Republican Association “Ekologiya I mir”, 17 December 2007, http://ekomir.crimea.ua/news/2007/12.17.shtml

[17] «Lessons from the environmental disaster in the Kerch Strait – President of the Crimean Republican Association “Ekologiya I mir” and President of the Crimean Academy of Science, Professor V.S. Tarasenko http://ekomir.crimea.ua/news/2007/12.03.shtml

[18] Statement from 60 Ukrainian civic environmental organizations from 29 December 2007 on the reasons and consequences of the disaster in the Kerch Strait // Website of the Environmental – Humanitarian Association “Zeleny Svit” http://greenworld.org.ua/index.php?id=1199783943

[19] On dealing with the emergency in the Kerch Strait and the results of environmental monitoring (as of 17-18.11.2007 // News from the Ministry for Environmental Protection website, http://menr.gov.ua/cgi-bin/go?node=1490

[20] The website “Environmental problems of the Black Sea”: http://blacksea.ewnc.org/kerch-katastrofa.

[21] Website of the environmental and humanitarian association “Zeleny svit”: http://greenworld.org.ua/index.php?id=1199783943

[22] «The Crushing of hopes», S. Ryabova, T. Opanasenko – the journal “Rhe Power of Money”, December 2007 (№159).

[23]  The Price of Zasyadko’s “gold” or Money above life  // KHPG website  http://209.222.140.184/en/index.php?id=1195520492

[24] Life after the explosion // “Weekly Mirror”  № 48 (677) 15 — 21 December 2007, http://dt.ua/1000/1550/61466/.

[25] Information from the Prosecutor General’s Office “On the level of lawfulness in the country in 2007”, submitted to the Verkhovna Rada on 11.02.2008.

[26] “Exceptional” Donbas // “Weekly Mirror, №47 (676) 8-14 December 2007, http://dt.ua/3000/3320/61377/.

[27] Judgment of the Constitutional Court of Ukraine on the official interpretation of Articles 3, 23, 31, 47 and 48 of the Law “On information” and Article 12 of the Law “On the prosecutor’s office” from 30 October 1997

[28]  List of Joint Implementation projects receiving letters approving them from the Ministry for Environmental Protection http://menr.gov.ua/cgi-bin/go?page=77&type=left.

[29] Information request from O. Stepanenko to the Minister of Justice M.V. Onishchuk № 08-01 from 29.01.2008.

[30] Information from the Prosecutor General’s Office “On the level of lawfulness in the country in 2007”, submitted to the Verkhovna Rada on 11.02.2008http://gp.gov.ua/ua/vlada.html?_m=publications&_t=rec&id=12985.

[31]  Letter from the State Committee of Statistics from 20.11.2007 № 05/6-8/159

[32]  Letter from the Committee on Environmental Policy, use of nature and elimination of the consequences of the Chernobyl Disaster № 04-16/15-193from 14.02.2008 signed by the Chair of the Committee S. Seminoga.

[33]  Cf. the section “The Government and the public” on the Government website  http://kmu.gov.ua/control/uk/publish/article?&art_id=2277632&cat_id=958905

[34] See an account of the appeal here: Where is the Aarhus Convention? // http://khpg.org.ua/en/index.php?id=1201552824&w=Aarhus.

[35]  The first annual report of the Human Rights Ombudsperson “On observance and protection of human rights and freedoms in Ukraine”: http://ombudsman.kiev.ua/d1_zm.htm.

[36] Decision 2/5b “Ukraine’s observance of its commitments under the Aarhus Convention”, adopted at the Second Meeting of the Parties to the Aarhus Convention in Almati, Kazakhstan 25-27.05.05 г. http://unece.org/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.8.r.pdf.

[37]  Letters from O. Stepanenko to the Minister for Environmental Protection V.H. Dzharti, dated 3.10.07 and 10.11.07.

[38]  Adopted by MEP Order 18.12.2003 № 169 and registered with the Ministry of Justice № 156/8755.

[39]  MEP letter from 06.11.2007 № 11991/09/10-07

[40] See an account of the appeal here: Where is the Aarhus Convention? // http://khpg.org.ua/en/index.php?id=1201552824&w=Aarhus.

[41] MEP letter from 5 June 2006 № 4940/04-7.

[42]  Information requests from O. Stepanenko to the Ministry for Environmental Protection V.H. Dzharty from 3 October and 10 Noveember 2007.

[43] MEP letter № 2306/09/10-08 from 25.02.2008р.

[44] Letter from the Committee on Environmental Policy, use of nature and elimination of the consequences of the Chernobyl Disaster № 04-16/12-293 from 29.02.08.

[45] See the two latest lists on the MEP website: http://menr.gov.ua/cgi-bin/go?node=Proekty%20dokumentiv%202.

[46] “Procedure for carrying out consultations with the public on formulating and implementing State policy”, approved by Cabinet of Ministers Resolution No. 1378 from 15 October 2004

[47]  “Humanitarian ecology and environmental ethics”, Site of the Kyiv Environmental and Cultural Centre : http://ecoethics.ru/.

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