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Human Rights in Ukraine. Website of the Kharkiv Human Rights Protection Group
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21. ENVIRONMENTAL RIGHTS

   


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1. Right to safe environment

Article 50 of the Constitution of Ukraine proclaims every citizen’s right to environment, safe for human life and health, and to compensation of any damage caused by the violation of this right. Similar right is stipulated by Article 9 of the Law “On Environmental Protection”. The state is a guarantor of observance of this right. Its mission in this context should consist in maintaining safe and healthy environment, non-exhaustive use of the natural resources. This can be achieved by integrating environmental policy as priority component into the state policy, in compliance with sustainable development principles.   

Information provided by the Ministry of Environment[2] and State Statistics Service of Ukraine once again confirmed that technogenic impact on the environment has been increasing over the year  2012, presenting ever increasing threat for the environment, public health and adherence to environmental rights.  

After drastic decrease in the indicators of emissions of main pollutants into the air in the late 90s, these indicators have been constantly increasing over the next 11 years[3]. Oddly enough, the amount of emissions has not diminished even in the recent years marked by the economic recession. As compared to 2010 atmospheric emissions’ indicators increased in 20 Ukrainian oblast’s. It testifies to the fact that the economy of the country is still oriented at wasteful use of non-renewable resources, obtaining and redistribution of the natural riches. Rhetorical inaction of the power bodies is barely concealed behind endless declarations of the structural modernization of economy, transfer to sustainable development and priority implementation of innovative resource-saving technologies.

In 2012 the black metallurgy, thermoelectric power plants, coal mining, oil and cement industries remained principal sources of pollution. Their emissions into the air and production waste constitute up to 90% of the total volume of emissions. The highest rates of increase in atmospheric emissions are registered in the industrialized regions, where the technogenic load on environment is unprecedented as compared to the world and European indicators: first of all, in Donetsk, Dnipropetrovsk, Luhansk and Zaporizhzhya oblast’s.  The largest volumes of emissions, as usually, are registered in the cities with prevalent metallurgical, coal-mining, chemical and heat-and-power industries: Mariupol, Kryvy Rih, Zelenodolsk, Debaltsevo, Burshtyn, Dniprodzerzhinsk etc. In 2011 the highest rates of pollution exceeding 5 maximum acceptable concentration rates were registered in 3 cities: in Kremechuk - 2 cases of carbon oxide pollution, in Krasnoperekopsk – a case of hydrogen chloride pollution, in Rivne – 4 cases, all related to phenol.[4] However, the state standards of the atmospheric air quality, as well as WHO standards for specific pollutants are exceeded in almost all big cities of Ukraine.  

It must be said here that atmospheric air pollution is ranking first as to the level of chemical hazards for people’s health, due to the fact that pollutants are most widely spread and permeate various environments. The respiratory way of their penetrating human body also presents grave health risks, first of all causing respiratory and oncological diseases. Thus, in Kremenchuk the summary cancer risk caused by 9 main chemical cancerogenes only amounts to 9.2х10-3; in Dnipropetrovsk  – to 6.8х10-3, and in Kyiv– to 4.9х10-3 respectively. Nitro-substitutes, chrome, benzol, chlorine-organic compounds, and especially dioxins are the main “contributors” to cancer risks.   The scientists believe that every subsequent doubling in the environment pollution indicators lead to the increase in morbidity by certain %. In particular, the cancer rate increases by 5% on the average with every doubling of cancerogeneous  benzopirene in the air. Analysis of the epidemiological research data shows that doubling in the environment pollution indicators with other equal components of the impact is manifested in the general morbidity increase by 20%, and respiratory diseases– by 26%.

Under the Ministry of Health data, the population of Ukraine is not only decreasing at one of the highest rates in the world; the life expectancy is decreasing also – today it is 12-14 years shorter than respective index in the European countries. In 2011 the life expectancy at birth constituted 65.8 years for males (66.5 in the cities and 64.4 in the rural areas), 75.7 years for the females (76 in the cities and 74.9 in the rural areas)[5]. Over the last 12 years the incidence of malignant tumors has grown almost 1.5 times in Ukraine[6].

It looks like the unsatisfactory environmental situation, threatening demographic tendencies, increase in morbidity and lethality rates call for the thorough study of the situation, analysis, evaluation and prognosis in public health; implementation of preventive measures, first of all, cutting down the pollution emissions and rendering the waste harmless.

Meanwhile, out of 600 projects for the reduction of emissions, which were planned within the framework of 2011 programs, only 458 were implemented[7]. The rates of introducing environmental protection measures in production and communal economy remain much slower than anticipated practically in all regions: technical modernization, commissioning of the gas-treatment systems is postponed “till better times”. The bodies of control do not provide enough incentives for the companies to introduce technological innovations which would decrease negative impact on environment. E.g. State Ecological Inspection in Kyiv oblast’ for the whole year failed to carry out instrumental-laboratory control of the emissions in the oblast’ enterprises, despite the fact that it was licensed to do so and had all the necessary measuring tools[8].

For many years environmentally friendly electric means of public transportation have been cut down in the Ukrainian cities, for the benefit of automobiles. E.g., the length of street-car routes decreased by 231.4 km (11%)[9] between 1998 and 2011. In the meantime the number of cars and volumes of car emissions are on the permanent increase. The self-governance bodies do not use the international experience of curbing the number of personal vehicles, restricting their access to the central city areas, recreational and residential zones. The main thing is they do not implement systemic policy of developing public and bicycle transportation.  

The use of bio-ethanol, environmentally clean mixed gasoline and bio-diesels would also help in improving urban environment and fulfilling the obligation undertaken by Ukraine at the IV Conference of the Ministers of Environmental Protection of the countries –EU members, i.e. banning the use of ethylated gasoline.  However, the “Ethanol” state program, adopted by the government as far back as 2000[10], under which the bio-ethanol, bio-diesel, high-octane oxygen gasoline additives production should have been organized in Ukraine in 10 years, was never implemented due to the lack of funding. New similar program currently exists only as a concept under discussion.[11]  While national market requires 5 million tons of bio-ethanol, in 2011 only 9 thousand tons was produced in Ukraine, while there was no bio-ethanol production at all between 2005 and 2010.  

 

The results of surface water reservoirs monitoring, provided by the State Epidemiological Service of Ukraine, shows that despite economic recession and decrease in waste discharges over the last years, the environmental condition of water reservoirs is aggravating by all indicators. The reason for that is that both industrial enterprises and communal services companies are used to save money on waste water treatment facilities; either they do not have such facilities at all or the available facilities are under-loaded or morally and physically obsolete.   

Environmental inspections found most drastic violations in Ternopil oblast’( the exceeding of norms found in all companies without exceptions), Dnipropetrovsk oblast’ (at 91% of the inspected enterprises) and Donetsk oblast’  (79 %).[12]  The highest rate of deviations from the water quality norms as to the chemical indicators is registered in Luhansk oblast’ (100% of samples) and Dnipropetrovsk oblast’ (63,4%), as to the bacteriological indicators -  in Odessa (37 %), Ivano-Frankivsk (33,9%), Chernyhyv (21,4%) and Kharkiv (18,2%) oblast’s.

The data provided by the Ministry of Regional Development of Ukraine, show that about  4.6 million residents of  261 urban settlements (161 cities and 100 settlements) in 25 regions of the country systematically get water with physical/chemical and bacteriological characteristics seriously deviating from the norms.  The dwellers of 1200 villages do not have guaranteed water supply sources due to the natural or technogenic causes, so that they have to use imported water. The majority of these villages are located in Zaporizhzhya (37.4%), Mykoalaiv (16%), Dnipropetrovsk (11.4%), Odessa (2.5%), Kirovohrad(3.1%) and Kherson (3,0%) oblast’s[13].

Meanwhile, the governing bodies of the country do not seem concerned about ensuring the citizens’ right to good drinking water. On the contrary, the issuance of temporary licenses to sell “drinking water which does not meet the normative requirements” to the consumers has become routine. Till the last year these temporary licenses were absolutely illegally issued to water supply companies by the Derzhspozhyvstandart, although Article 23 of the Law “On Drinking Water and Drinking Water Supply” stipulates that the water supply companies must “restrict or stop the operation of the central drinking water supply companies if the need to respoond to deterioration of water quality in drinking water sources arises, and it cannot be improved to meet the state standards requirements”. However, in October 2012 “the people’s elects” amended this article, legitimizing the supply of poor quality water to the consumers. Now water companies have the right “to accept temporary deviations in drinking water quality from the state specifications only if they are licensed by the central executive power body in charge of state policy for technical regulations, the license being based on the conclusions of the central executive power body in charge of state policy for sanitary and epidemiological well-being of the public”. 

Energy consuming and raw materials-based (aka wasteful and non-competitive) economy of Ukraine still accounts for high indicators of waste annual formation and accumulation. Over the last ten years the total volumes of industrial and domestic waste production in Ukraine have been on the constant increase.[14] The recent years brought no changes to this tendency: the volumes of industrial waste production (I-IV classes of hazard) have grown in 2011 as compared to 2010 from 419 million tons to 444 million. Totally 13 267 million tons of waste were accumulated in 2010, while in the next year this amount increased to 14 422 million tons (only in special landfills and in the industrial yards, not taking into account spontaneous dumping places in the remote areas).   

It must be said that domestic waste which has of late become a real plague for the residential areas and recreational zones used by Ukrainian public, under official statistics in 2010 accounted for only  3% of the total volume (12,4 million tons),  while industrial and coal-mining waste accounted for 93.5%[15]. The reluctance to set up an efficient system of domestic waste management based on reducing the volumes of its formation and maximum recycling of the secondary raw materials, becomes especially obvious when compared to the situation in the EU countries. There only 39.8% are deposited in the city dumps, while in Ukraine this figure amounts to  93%;  recycling and composting amount to 39.9% та 3 % respectively.

The generation of the new types of waste is on the rise, e.g. electronic waste: video and audio players, house-aid devices, computers, networks’ and telecommunication equipment. In EU countries the share of this type of waste is growing three times quicker than domestic waste. In the developing countries this rate will be even larger, and while in the EU countries up to 50 – 80 % of electronic waste is recycled, here they end up in the dumping sites. As energy-saving bulbs are becoming more and more widely used (annually up to 20 million such mercury-containing bulbs are brought into the country), the waste containing mercury and its compounds is growing in volume.

The Ministry of Environment has “updated” its site with the lists of 10 and 100 companies respectively, which are the largest pollutants of environment.[16] The situation in this respect remains stable: the same names are to be found among the “dirtiest ten”: Dniprodzerzhynsk plant “Dzerzhynsky Kombinat ”, Mariupol “Illich Kombinat”,  “Zaporizhstal” company, Kryvy Rih “Arcelor Mittal”, Burshtyn EPP… For the umpteenth time the question arises: if the negative impact of monstrous pollutants cannot be mitigated over the years and they cannot be forced to pay fines for damages to the environment and public health, then, probably, it is high time to use severe sanctions, up to complete decommissioning of these enterprises?

In fact considerable number of environmentally hazardous industries is simply ignored. E.g. Horlivka chemical factory in Donetsk oblast’, former military plant which has accumulated a lot of toxic and explosive waste, including about 2.5 thousand tons of mononitroclorbenzol, the raw matter of I class of hazard. In 2009 500 containers (32 tons) of this poison have been repacked with the help of  Blacksmith Institute (USA) foundation. However, 11.6 thousand tons of soil contaminated with mononitroclorbenzol, still remain at the factory territory. Besides, about 30 tons of explosive waste from trotyl production also is stored there in the burial site, the life term of which has expired long ago. There is no monitoring of the chemical processes in the burial site, so the threat of explosion persists. And nearby, at the “Styrol” plant two ammoniac storage reservoirs, 10 thousand cubic meters each, are located as well as cisterns with oleum and ammoniac and the railroad… Solutions for Horlivka chemical factory were envisaged in the “State Program for handling toxic waste”, but practical steps have been postponed so far.[17]

The news available at Prosecutor’s General Office web-portal contains information on crimes against environment and violations of the environmental rights. Thus, the PGO advised that over the last ten years the total area of waste treatment facilities and burial waste dumps has increased more than twice in Ukraine. Over 1 thousand out of 6 thousand objects do not meet the safety requirements; over one third is not inventoried.  PGO imitates frenzied activity aimed at fighting violations in waste handling. If one is to trust its information, 3.8 thousand officials have been held accountable (half of those working in state control bodies) and 79 criminal cases filed with courts on the basis of inspections carried out by the prosecutors in 2012.  112 damages’ claims were submitted for total amount of 32.5 million UAH. 52 of them were satisfied with  damages paid at the amount of  12.5 million[18].

However the universal environmental principles stipulating that “the pollutants have to pay” and “the perpetrator pays the damages” are not recognized in Ukraine. The State Ecological Inspection of Ukraine provided official figures of calculated damages for the violation of environmental law in 2012 - 1 billion 660 million UAH. The SEI filed claims and grievances for the total sum of 995 million UAH of compensatory damages.  The real amount of damages paid in 2012 to the state budget constituted only 47.3 million UAH or 5% of total damages claims and 47% of the respective figure retrieved in 2011[19]!

The unprecedented fact that by the end of 2012 the majority of Ukrainian oblasts did not have efficient and viable programs for environmental protection is also worth mentioning. The former programs’ period of validity has terminated in 2010 – 2011, but no reports on their completion have been submitted by state administrations, in violation of the provisions of p. 3. 5 of Article   119 of the Constitution.  

Instead the local offices of the Ministry of Environment are being totally reorganized to meet the requirements of the odious law “On amendments to some legal acts of Ukraine (concerning optimization of competences of executive bodies in the area of environment and natural resources, including at the local level)”, passed on October 16, 2012: the state environmental protection departments are closed; as of January 2013, 21 state ecological inspections in the regions were shut down.

It means that currently the environmental protection system is completely ruined, while the largest loss of experience, human potential and resources is occurring in the process. Meanwhile the state administrations are not eager to undertake the competences of the structures liquidated by the Ministry of Environment or to develop environmental protection programs for future operation.

Apparently, the steps of higher echelons of power, serving big capital interests, are aimed at further marginalizing of environmental protection policies in the state policy of the country. Raw-materials’ oriented economy, which is traditionally cherished by the authorities, deprives the country of any prospective development, leads to the increase in pollution volumes, exhaustion of natural resources, waste of natural capital, with less and less time for modernization, and, therefore, to the increased threat and hazards for current and future generations.   

 

2.    Right of free access to environmental information

It looks like the Ministry of Environment has finally respoonded to acute criticism on behalf of the NGOs concerning the long-lasting violation of Article 25-1 of the Law “On Environmental Protection”, which stipulates annual preparation of the National report on current environmental situation, publishing it on the Internet, printing in hard copies and submitting for the Supreme Rada consideration. Over the year 2012 the Ministry was hastily “repaying the debts” as far as the access to information goes, so that its official web-site now offers three long-due annual national reports: for the years 2009[20], 2010[21] and 2011[22]. The report for 2008 probably will be never compiled and nothing can be done about it…

However, the institutionally weak Ministry of Environment has no capacity to ensure complete conformity with the provisions of the aforementioned article of the fundamental environmental law with respect to information support which should be provided by the high official bodies. These latter are interested in environmental information only in the light of potential redistribution of natural resources between the financial/political groups. That is why for eight years the National reports on current environmental situation have not been considered by the Supreme Rada or edited as a separate publication. It still is available as PDF-file only on the ministerial page on the Internet.

Compiling of Regional reports on current environmental situation seems to be rather problematic also.  The Ministry of Environment web-portal contains the reports for 2009[23], the territorial departments’ sites – reports for 2010 and, to a certain extent, for 2011.

The law, however, does not require the environmental information to be provided by the oblast’ departments for environmental protection. Under the law, it is the task of the ARC Council of Ministers, oblast’, Kyiv and Sebastopol state administrations. And it is logical, because these bodies have the necessary authority and competence to seek the needed information from all the state structures involved in environmental monitoring. This information divulged in the mass media, controlled by them, has the best chance of being properly perceived by the public and of contributing to prioritization of environmental issues. Nevertheless, looking for environmental information on web-portals or printed publications of the state administrations will be plain waste of time – you will not find it there as it was never there. In 2012 the situation remained the same: the regional reports on current environmental situation are published only on the web-portal of the Ministry of Environment and with much delay.  

As in the previous years, we observe constant delays in publications of the special Ministry of Environment reports – in the course of 2012 not a single new report was published on its web-portal.[24] So far the report on the fulfillment of the state program for setting up national environmental network for 2006 remains the “freshest” piece of news on the portal.  

“Ekologia-Pravo-Lyudyna” NGO (EPL) has analyzed the changes introduced over the year into   the normative acts of the Ministry of Environment concerning information relations – with respect to the new law “On Access to Public Information” and new version of the law “On Information”. The analysis demonstrated that in general the Ministry of Environment orders are brought into compliance with legislative novelties.  However, EPL criticized certain regulatory acts treating public information as confidential, establishing the costs of copying and printing information materials, and setting up a list of types of environmental information to be published on the Ministry of Environment web-site.[25]

The former reports on observance of environmental rights already referred to the ruling of Circuit administrative court of Kyiv, passed on the EPL claim against the Ministry of Environment. EPL asked the court to classify the ministry’s inaction, i.e. failure to publish the results of state environmental expert examination on its official web-site as illegal. On 22.11.2012 the administrative court of Kyiv supported this ruling and obliged the ministry to publish over 100 conclusions of the examination on its site.[26] The court rulings came in force, but the ministry is in no hurry to comply with them. So far not a single conclusion of the environmental examination has been published on its site. Visiting the page of the State Environmental Expert Evaluation makes this fact evident.[27] Moreover, the information has not been updated at all since 2011, testifying to the degradation of one of the most important institutions of the state environmental policy in Ukraine. The publicizing of the conclusions of the environmental examination by some regional departments of the Ministry of Environment are more of exceptions than of a rule.   

As compared to the Ministry of Environment the State Statistics Service appears more accurate in divulging of environmental information. E.g. in 2012 it published statistical reference-book “Environment in Ukraine” with summarized information for the previous year and dynamics of certain indicators of anthropogenic impact on environment over the last twenty years.[28]

The Prosecutor’s General Office, on the other hand, probably was too busy looking for criminal offence in the activities of the opposition leaders. For two years in a row it failed to submit annual analytical information on law abidance in the country for the years 2010, 2011 and 2012 or to publish it on its own web-portal, as required by Article 2 of the Law of Ukraine “On Prosecutor’s Office”).[29] That is why notifications on crimes against environment or violation of environmental rights can be found only randomly in prosecutor’s offices news and mass media.

The Ministry of Regional Development which for many years has been ignoring the provision of Article 9 “On Drinking Water and Drinking Water Supply”by not compiling or publishing National report on the drinking water quality and state of drinking water supply, finally respoonded to the criticism.  The most recent ‘water” report dates back to 2006. Despite the rumors on availability of 2009 report, not a single mention of it was found on the portal of the Ministry of Regional Development. Only on April 23, 2012 it appeared on the ministerial site.[30] However, it was January 30, 2013 that became the real celebration day for the seekers of information of drinking water quality in Ukraine. On this day the ministerial site published abundant information on drinking water quality – two reports (for 2010 and 2011) appeared on site at once![31]  However, closer examination of the information leaves no grounds for celebration - the Ministry of Regional Development confirmed that some oblast’ communal and utility services departments failed to provide information for the years  2010 – 2011, while the others simply replaced the year  2009  to 2010 and 2011 in their respective reports[32]. Some data submitted in the reports turned out misinformation; e.g. reports claimed that centralized water supply covers 100% of the cities in Ternopil, Kharkiv and Chernyhyv oblast’s, which apparently is not true.

Practically the majority of Ukrainian oblasts do not publish regional programs of environmental protection, while many oblasts do not have them at all. We want to stress once again that their development is the constitutional duty of oblast’ state administrations (Article 119 of the Constitution), Конституції), which have neglected it so far. In practical operation this duty was performed by the territorial departments of the Ministry of Environment which now face the liquidation process. On opening e.g. the web-page “oblast’ programs for environmental protection” of the Ternopil oblast’ state department[33], you will find notification: “You are not allowed to use this resource. You have to enter the system as a user”. The system is very difficult to enter, may be due to the fact that the former oblast’ program for environmental protection terminated in 2011, and the new one has never been developed. The situation in the majority of Ukrainian oblasts is very similar…

 

3.    Exercising the right to participate in environmental decision-making process 

3.1. Report of the NGOs “Public assessment of the national environmental policy” for 2011

The devising of the annual report “Public assessment of the national environmental policy” became the most vivid demonstration of collaborative effort of non-governmental organizations.   The preparation of this report is required by the National plan of action in environmental protection in Ukraine for the years 2011–2015“[34]. Earlier a similar document was compiled by a group of NGOs in 2003[35]. The current report has been compiled within the framework of the project supported by the European Union[36]. In December 2012 5 regional hearings on draft report, with 220 participants representing 200 organizations, were held.

The report reflected public opinion on the current state and tendencies of development in environmental policy of Ukraine. The group of authors, proceeding from their own expertise and study of the materials, analyses the state environmental policy in 8 sections of the report, 339 pages in total.

The report, as stated in its text, should be used for the everyday operation of “governmental officials, Presidential Administration, deputies of all levels, environmental experts, NGO members, mass media professionals”. At the same time it is noteworthy that the Action Plan does not stipulate any specified procedures for consideration and implementation of proposals contained in the Public assessment of the national environmental policy” on the official level.  

On December 25 the task force in charge of compiling the 2011report submitted the results of its operation to the Ministry of Environment. Lamentably, the ministerial officials were not present at the ceremony. Soon the report was published on web-portal of the Ministry of Environment in the “PR” section – “Aarhus center”. [37]  The government, presidential administration and the Supreme Rada of Ukraine so far have not respoonded to the report. Neither was it covered by the national media. This neglect vividly demonstrates the “readiness” of power establishment to the dialogue with civil society. On the other hand, however, this situation creates incentives for NGOs in search of the new, more efficient forms of self-organization to prevent the total failure of the environmental policy.  

As of the beginning of 2013 the new task force for the development of “Public assessment of the national environmental policy - 2012” has been set up.

 

3.2. Public protests against the plans of non-traditional gas production

Over the years 2011 – 2012 discussions around the criteria of acceptability of large-scale projects concerning the production of shale gas and non-traditional gases involving fracking technology, have been going on in Ukraine. It is well-known that these technologies may have a serious negative impact on environment. Thus, the drilling and use of the boreholes for shale gas extraction in Olesk deposit and non-traditional gas extraction in Yuzivka deposit can lead to numerous environmental problems unprecedented for Ukraine.   

Some European countries have already introduced moratoria on the use of fracking for non-traditional gases production. In September this year the International Union for Environmental Protection passed resolution №118 calling the states to stop issuing licenses for gas production by hydro-explosion and to ban its use in the proximity of drinking water sources, in seismic areas, scarce water resources’ areas, seismic cracks and natural preserves.

Public environmental protection organizations are concerned about lack of transparency in the projects for shale gas production and their open lobbying by some officials, including the minister E. Stavitsky.

At the end of the year a group of renowned environmental NGOs of national and international levels submitted an open letter to the European parliament, expressing their concern about environmental hazards posed by potential large-scale production of shale gas in Ukraine. The writers of the letter suggested that the European parliament does not support hazardous projects.[38] The appeal was signed by the leaders of the environmental research Bureau, “Mama-86”, All-Ukrainian environmental league, “Pechenehy” NGO, EPL, and National Eco-center of Ukraine.   

 

3.3. Public protests in Mariupol

Environmental protest actions in Mariupol in 2012 were the largest environmental events of the year. They were brought to life by unprecedentedly high levels of pollutant emissions from metallurgy works of the city, in particular, from “Illyich Kombinat”, “Azovstal”, “Azovelektrostal”. Only after a number of radical street actions, like, e.g. short-term closing of traffic in the central part of the city for the rally on October 13, the protesters managed to draw the authorities’ and companies’ owners’ attention to their pledge, i.e. the non-resolved environmental issues, and to start the negotiations process.[39]

The most massive rally counting 5 thousand attendees took place on November 4 under the slogan “Stop smog!” and ended with resolution addressed to the President, government, ministers of environment and health, Ombudsman, the proprietor of “SKM” and “Metinvest” companies R.Akhmetov and others. The rally participants demanded the modernization of technological processes in the ‘metallurgy giants”, implementing efficient control over the emissions and toxic compounds content in the air, declaring Mariupol the zone of environmental disaster, providing preventive care for children at the cost of the owners of polluting enterprises etc.[40]

 

3.4. Public protests against the implementation of HEPP construction programs in the Carpathian region

Recently the regional bodies of authority approved the plans for small HEPP construction in the Carpathians, unprecedented as to their scope.  330 HEPP have to be built in Trans-Carpathian region,  50 to 150 – in Ivano-Frankivsk and Bukovyna region, about 20 – in Lviv region. Over 30 HEPP are planned to be built on some river, Cheremosh in particular. Experts sustain that the construction of that many HEPP can pose a very serious threat for biological and landscape diversity of the Carpathian Mountains. The projects, which are not based on due scientific substantiation, can lead to irretrievable ruination of river and mountain ecosystems, creating a number of hazards for environmental safety of mountain settlements. They are nothing but the repetition of the soviet nature-taming practices.   Looks like neither natural disasters nor international scandals taught the “new times’ Bolsheviks” a lesson. Currently in order to launder money through “green tariffs” on electric power they are ready to destroy the natural heritage in the Carpathian Mountains.  

March 14 was proclaimed an “International day against dams, for the rivers, water and life”. On that date the all-Ukrainian public campaign “Let’s save Carpathian Mountains from small HEPP construction” uniting the NGOs, tourist clubs’ members, scientists and journalists, was launched.[41] Over the year a number of working meetings (including meetings in the Supreme Rada of Ukraine) were held, several information requests and appeals were submitted and court claims filed within the framework of this campaign.   

 

4. Realization of right to accessible justice on environmental issues

As in the previous years, the isolated precedents of successful protection of environmental rights in courts were created by the non-governmental organizations.  

Over the year several court cases were won the EPL public organization. On its petition Odessa appellate administrative court on November 6, 2012 passed a decision concerning allotment of reserved lands for the needs of “Energoatom” company.[42] The court classified the Mykolaiv oblast’ council decision of 2006 on allotting 27.72 ha of the lands belonging to landscape park “Granite and steppe Pobuzhzhya” as illegal.  The courts questioned the possibility of permanent use of these lands by “Energoatom” and re-established their primary designation, i.e. environmental protection zones. The courts passed important conclusions: the allotment of especially valuable lands, like the land of the national preserves, can be approved only by the Supreme Rada.  Disputes arising under these circumstances fall under the jurisdiction of public law, as the national preserves’ fund has nationwide importance. It means that unlimited number of individuals has the right of court appeal against disputable decisions made by the subjects of authority in respect to these lands.

On August 30, 2012 Lviv economic court fully satisfied EPL claim against an enterprise-pollutant, in the dispute related to the environmental information. The court obliged the subjects of economic activity to provide environmental information on request, and respectively, obliged the defendant to provide the documents sought by EPL in this dispute, i.e. the papers with justification of the emissions scope and report on emissions inventory.  This court’s judgment is most characteristic as an example of how an NGO finally got hold of the design documentation kept in the companies.[43]

In 2012 EPL appealed the legality of the “Procedure for public involvement in the discussions on decision-making concerning environmental issues”. This document was approved by the government on the day prior to the latest Meeting of the Aarhus Convention parties and has been repeatedly criticized for non-conformity to the Convention standards.[44]  The NGO won administrative trial in the first instance court and now intends to proceed with the court of higher instance.

Kyiv environmental and cultural center and “Ekopravo” have filed 5 joint claims over the year; two of the claims ended in overwhelming victory of the environmentalists, while two more are currently under the court’s consideration.  

Thus, on October 9 the Highest Administrative Court of Ukraine ruled in favor of the “Roztochchya”natural preserve in the case “KECC and “Ekopravo” v  Ministry of Education”, having invalidated the ministerial order under which the preserve was to be “reorganized”, i.e. deprived of the legal entity status.[45]  Ominously, not a single body appealed to by environmentalists (i.e. the President, national Academy of Sciences of Ukraine, the Prosecutor’s General Office, academic elite of the National Forestry University of Ukraine) supported the “Roztochchya” grievance against the arbitrary actions of the minister of education D.Tabachnik. Only due to the perseverance demonstrated by non-governmental organizations, the law was restituted and the preserve saved.   

On the next day the same Highest Administrative Court of Ukraine put the final full stop in the case “KECC and “Ekopravo” v Ministry of Environment”, which had lasted for two years.  The Court passed a resolution concerning the ministerial appeal against the Circuit administrative court of Kyiv resolution and appellation court resolution, which twice classified its order №289 of 09.06.2008 as illegal. The said order approved another list of confidential data within the system of the Ministry of Environment”.[46] The case was won by “Ekopravo-Kyiv” attorney G.Levina.

The Prosecutor’s General Office informed about their winning cases concerning illegal allotment of lands belonging to the natural preservation funds. Thus, on petition submitted by the deputy Prosecutor General, Lviv economic court of appeals annulled a number of Tarniv village (Ivano-Frankivsk oblast’) council decisions passed over the years 2001 – 2011 ordering the transfer of 25 ha of reserve lands of the Carpathian national natural park to an economic operation entity for a long-term lease, and also invalidated the land-lease contract.[47]

The Prosecutor’s General Office also achieved outstanding results in the long-lasting bureaucratic case involving the illegal allotment of natural reserve “Zhukiv Island” lands in Koncha-Zaspa for development. According to PGO information recently published on its web-portal[48], the Highest Administrative Court of Ukraine finally satisfied its cassation appeal and annulled the verdict passed by the court of lower instance. The verdict kept in force an odious decision of the Kyiv city council, which, as far back as 2007, transferred 44 ha of the reserve lands on Zhukiv Island to a “housing cooperative” represented by 4 members, as a property, free of charge, while almost 60 ha more were given out for a long-term lease. Is it possible that triumphant GPO statement on the liquidation of the ill-famed “cooperative” on Zhukiv Island comes true? With time, we’ll see…

It must be stressed here that perseverance of the National environmental center of Ukraine, and, specifically, the activity of the uncompromising leader of its youth section O.Vasylyuk, over the years has been the main driving force for the GPO in its battle for Zhukiv Island[49].

Finally in December 2012 the Prosecutor’s General Office won two more trials related to the protection of Koncha-Zaspa reserve lands against illegal privatization. First the Highest Economic Court satisfied the cassation appeal of the prosecutor’s office for Kyiv oblast’ and invalidated the state property titles of a commercial enterprises for 260ha of land belonging to the water fund in Obukhiv raion (Kyiv oblast’).[50] Soon after that Kyiv oblast’ Court of Appeals left in force the decision of the Obukhiv raion court on the GPO petition and classified the ordinance of the Obukhiv raion state administration concerning free privatization of 75 ha of the protected land of the water fund under Kozynka village council worth 122 million UAH, “with the purpose of individual farming” as illegal. Let’s hope that the individuals craving for hard farmers’ labor will comply with this court’s decision, and that the new “seekers of farming lands” in Koncha Zaspa would not replace them. Then, finally, these lucrative land plots will be returned to the state.[51]

In many cases, however, the courts passed the decisions unfavorable for the environmental protection community. Thus, on October 9, 2012 the Highest Administrative Court of Ukraine, availing itself of Kyiv city state administration’s inertia in the matter, annulled the resolution of Kyiv Court of Appeals of  21.06.12 which temporarily suspended illegal process of appropriation of  4 thousand ha of suburban Kyiv forests (i.e. so-called “Bilychy forest” which is a part of the Svyatoshyn forestry enterprise) unleashed by the managers of Kotsyubynske settlement. By its decision the HADU deprived the Kievites of priceless recreational areas with the purpose of their further development through construction[52].

More and more often the courts ignore the legal guarantees of access to information contained in the conclusions of state ecological inspections and in the sections dealing with assessment of investment projects’ environmental impacts. Many a time the members of public are unable of defending their right to environmental information in court. Thus, in January 2012 the Highest Specialized Court of Ukraine for civil and criminal cases refused to open an appeal investigation on the petition of environmental NGO “Zeleny svit”, claiming the violation of the right of free access to environmental information.[53].In this case the judges of three instances ignored the legislative norms in force, which stipulate that the subjects of economic activity in charge of environmental information are to be treated as information managers obliged to provide the information on request[54].

 

5. Persecutions on account of environmental protection activities

5.1 Assassination of the environmentalist V. Honcharenko

On August1, 2012 environmentalist, leader of the public movement “For the right of the citizens to environmental safety”, editor of “Ekobezpeka” newspaper Volodymyr Honcharenko was severely beaten and died in the hospital as a result of the sustained injuries.

Family, friends and colleagues of V.Honcharenko connect this crime to the deceased’ active public work aimed at protecting environment, environmental rights, uncovering of corruption cases and counteracting irrespoonsibility of the local bureaucrats with respect to environmental protection. On July 27, at his last press-conference V. Honcharenko told about 180 tons of chemically contaminated metal scrap stored in Kryvy Rih.

On August 10 142 NGO members sent a collective appeal to the President of Ukraine and chief executives of the law-enforcement bodies demanding to take under their control the investigation of this impudent killing. Besides, several human rights’ organizations approached the Aarhus Convention Bureau, filing a grievance against the Ministry of Environment inertia in investigating the facts, the divulging of which, in their belief, led to the public activist’s death.[55] By the end of 2012 the investigation of V.Honcharenko’s assassination was not closed yet.

 

5.2 Court persecution on account of environmental protection and journalists’ activities

On September 6, 2012 Dzerzhynsky district court (Kharkiv) opened the case on protection of honor, dignity, business reputation and moral damages at the amount of 158 thousand UAH against the journalist O.Perehin and NGO  “Zeleny front”.[56] The petitioner claimed that his dignity was suffered from the publication concerning restriction of right to public use of the forest resources by the villagers of Zhovtneve and Borshchiv (Kharkiv oblast’) on “Zeleny front” site.[57] This claim triggered another case against the leaders of the environmental protection group and the activists from the aforementioned villages, who demand the restitution of their environmental rights, violated by tree-cuttings in the forest, which is in the petitioner’s private property.   An earlier case on protection of honor, dignity, business reputation and moral damages against citizen V. Strashko ended in peace settlement[58]

According to “Anglers’ association of Ukraine”, in 2012 the State Agency for fish resources of Ukraine approached Obolon’ district court in Kyiv seeking protection of their business reputation against the president of the said association A.Nelipa.[59] This latter believes that he was sued by the Agency on account of his critical position towards the Agency’s operation, frequently expressed by him in his letters to the authorities, mass media etc. A. Nelipa won the case in the court of the first instance. On October    25 the Kyiv Court of Appeals, upon considering the appeal submitted by the Agency, arrived at the conclusion that the court of the first instance passed a well-grounded, legal and valid decision in favor of the Anglers’ association. The arguments of the appeal do not refute this decision, and there are no grounds for its annulment.

 

5.3. Pressure exerted on the Public Council under the Ministry of Environment

Since its first steps, the Ministry of Environment tried to launch a public dialogue. The Public Council under the Ministry of Environment was set up in 1995 and became one of the first Ukrainian institutions of this type. It united all-Ukrainian and international organizations registered by the Ministry of Justice, whose statutory operation was related to environmental protection.

The PC in its current composition was set up in summer 2011 in compliance with the Resolution of the Cabinet of Ministers №966 of 03.11.2011. The council efficiently collaborated with the Ministry of Environment. The ministerial site has the records of their meetings.[60]

The conflict between the Ministry of Environment and PC arose around the dismissal of the director of the Carpathian Biospheric reserve F.Gamor. The motion demanding the dismissal was initiated by Rakhiv raion and Trans-Carpathian oblast’ administrations. The main reason for dismissal apparently consisted in the director’s intent to broaden the territory of the reserve in conformity with the Presidential instruction. It looked like the circles involved in forests’ use in this area were not enthusiastic about this broadening.  

The majority of the PC member over the year remained critical of the minister E.Stavitsky’s stand concerning the admissibility of shale gas production by fracking.[61] The PC especially demanded the divulging of the assessment of environmental impact of the projects, funded by the US government. So far this assessment has been concealed from public at large both by Ukrainian and American state structures.  

On August 21, 2012 at the meeting between the minister and the NGOs the scenario of the PC raiding was proposed. Eventually the minister arbitrarily got rid of “unaccommodating” PC, annulling his predecessor’s order on council composition, and, eventually, passing the order on setting up a new council, consisting of more loyal members.[62]

 

6.  Right to general and special use of the natural resources

 Article 13 of the Constitution stipulates the right to ownership of land, deposits, atmospheric air, water and other natural resources and sustains that every citizen has the right to use the natural objects of public ownership under the law “On Environmental Protection” (Article 3) which guarantees free general use and paid special use of resources for the economic activity. The next article of the law stipulates that the rule of people of Ukraine in the area of environmental protection and use of natural resources is realized under the provisions of the Constitution, both directly, through referenda natural resources, and indirectly, through the bodies of public authority.   There have been no precedents of public referendum over the years of the Ukrainian independence. On the contrary, the practice when public was isolated from environmental decision-making by the authorities was quite common. Such practices have been observed over the year 2012. E.g. the notification on development and public discussion of the draft law “ On amendments to the Water and Land Codes of Ukraine ( with respect to water objects’ lease)“ was posted on the ministerial site   on April 9, 2012, leaving only 7 days for the proposals, while the governmental instruction envisages the minimum term of 30 days.[63] Evaluating the draft law positively as a whole, it is noteworthy that some innovations introduced into it seem controversial and have decisive significance. Thus, for the first time in Ukraine the concept of private ownership of natural water reservoirs has been introduced. 

 

7.  The right to compensation for the damages to health caused by an environmental disaster

Due to the vagueness of legislative provisions, flaws in the current legal and administrative practice in most cases it is difficult to establish cause and result connection between the aggravation of environmental situation, natural disasters and their impact on human health. Therefore the recognition of the huge number of people affected by the Chornobyl disaster and establishment of the constitutional guarantees and legal procedure for compensating the damages to their health looks like a unique occurrence in Ukraine.  [64]  However, the paradox of law application by our rulers, as usual, led to the fact that the relevant legal guarantees are “suspended’ on annual basis, when the state budget is passed, while the amounts of the “compensation” promised by the government turn out to be hundreds of times lesser than the amounts stipulated by the law. The attempts of the affected people to defend their right in court end up with mass non-compliance with court decisions and efforts to change the law disregarding  public interests.  

Thus, the law “On State Budget of Ukraine for 2012” for the umpteenth time suspended the validity of some articles of “Chornobyl” law and vested the competence of establishing the amount of respective payments in the Cabinet of Ministers, thus violating the right to environmental damages’ compensation in the amount stipulated by the law. The results of voting for the state budget 2012 can be found on the Supreme Rada site.[65]

 

8. Assessment of adherence to international environmental protection Conventions  

8.1. The UN EEC Convention on access to information, public participation in decision-making and access to justice on environmental issues (Aarhus Convention)

The former reports mentioned that three past meetings of the Aarhus Convention parties in Almaty  (2005), Riga (2008) and Kishinev(2011) classified Ukraine as country systematically failing to comply with its provisions: the Convention implementation strategy has not been developed, judicial system and court practice are not harmonized with its provisions, defined procedures for public participation in decision-making have not been established and practical mechanisms for the Convention implementation have not been devised.[66]

Until now neither Cabinet of Ministers nor the Ministry of Environment informed Ukrainians public about fulfillment of the Parties’ meeting recommendations. Moreover, for 8 years the government has been  hiding from public the conclusions of the three Aarhus Convention meetings, most unfavorable for Ukraine. They have never been published in Ukrainian language in the national media.  

The previous “Action Plan for the implementation of the Aarhus Convention parties’ decisions III/6f”, approved by the governmental ordinance № 1628-r of December 27, 2008”, the goals of which had to be achieved as far back as 2009, was never realized. The implementation of the next “National Action Plan for the environmental protection for the years 2011-2015 роки” approved by the ordinance № 577-r of May 25, 2011,  has never even started..[67]

Despite the development of two draft laws “On Assessment of Environmental Impact” and their anticipated submission to the Supreme Rada for consideration in July 2012, neither of them has been passed. There is no official information concerning the approval procedures for the said draft laws on the web-sites of the Ministry of Environment, Cabinet of Ministers or the
Supreme Rada.   

Hence, on June 29, 2012 the Committee on adherence to Aarhus Convention concluded that Ukraine failed to fully comply with earlier recommendations of the Convention Parties, and, therefore, sanctions, in the form of warning, cannot be lifted. The Committee once again suggested that Ukraine provides information on fulfillment of the Convention recommendations, especially in legislative process, prior to November 30, 2012.[68].

 The “National report on observance of human rights and freedoms in Ukraine” compiled within the framework of the Universal Periodical Review (UPR) for 2012, the government found “insufficient progress in harmonizing Ukrainian legislation with the Espoo and Aarhus Conventions’ requirements”. However, the analysis of causes   and ways out of this situation do not look convincing.[69]

It must be mentioned here that the stake-holders report in the context of Ukraine’s evaluation by UPR in 2012  for the first time contains a section dwelling upon Ukraine’s adherence to  environmental  rights, prepared by the non-governmental  environmental  organizations.[70] This report offers the following proposals: fulfilling the recommendations of the Aarhus Convention meetings; developing the strategy of its implementation, strictly defining procedures for public participation in decision-making and practical mechanisms for the Convention implementation; harmonizing Ukrainian law with Aarhus Convention provisions; developing draft laws on the amendments to Water, Land and Forestry Codes of Ukraine, Natural Resources Code, aimed at bringing them into compliance with the international environmental protection Conventions; ratifying the  UNECE Protocol on pollutant release and transfer registers),and amendment on  GMO to Aarhus Convention.

It is also noteworthy that in the course of UPR in the UN Human Rights Council another proposal was submitted by Rumania to the effect that Ukraine should do its utmost to bring its national legislation into compliance with the Espoo and Aarhus Conventions to ensure the general exercising of right to the environment safe for human life and health.[71] In order to comply Ukraine will have to supply specific information on human rights in this focus at the next Council meeting.  

 

8.2. Espoo Convention

For 13 years the number of Espoo Convention decisions, not fulfilled by Ukraine has been growing. Two meetings of the Convention Parties in a row charged Ukraine with violating the Convention by non-compliance with its commitments on designing and constructing deep-water navigable canal “Danube-Black Sea” through “Bystre” gorge ( on Rumania’s grievance).)[72]

These decisions have never been published by media in Ukrainian language. Currently it is not known whether the Ministry of Environment, Cabinet of Ministers or Inter-Agency coordination council on realization of the Espoo Convention decisions in Ukraine (i.e. the decisions of the 5th Parties’ meeting with respect to Ukraine) has considered the said decisions, and, if so, what conclusions were made by the official power.  No information on the subject was posted on the Cabinet of Ministers’ official site.  

It also remains unknown who currently heads the Inter-Agency coordination council on realization of the Espoo Convention decisions in Ukraine, when its last meeting was held, what proposals have been introduced by the Ministry of Environment (as national coordinator on Espoo Convention matters) to Inter-Agency coordination council. No information is available on the implementation of the Ukrainian strategy for the Espoo Convention fulfillment which, under proposal 12 of the meetings of Parties had to be developed in 2009   (MOP Decision IV/2).[73] The “Strategy for Espoo Convention decisions’ implementation in Ukraine” was devised by the expert group as far back as 2010 within the European commission project for helping Ukraine in the implementation of Aarhus Convention and Espoo Convention decisions has been never approved by the Government.[74] As of now not a single proposal contained in the Strategy has been fulfilled.  

The Cabinet of Ministers’ of Ukraine response № 17-12/998 of October 11, 2012  to the information request submitted by “Zeleny svit” environmental NGO  № 04 – 09 of September 25, 2012, addressed to the Prime-Minister of Ukraine M.Azarov does not contain relevant information on the essence of the questions.  

Ukraine still has not ratified the Protocol on Strategic environmental assessment to Espoo Convention.[75] Although the relevant law was stipulated by 2012 Action Plan for the implementation of

the national program for customizing Ukrainian law in conformity with EU legislation,[76] its draft has neither been approved by the government nor submitted to the parliament.

On October 2, the Ministry of Environment published the draft law “On introducing amendments to some laws of Ukraine on account of ratification of the Protocol on strategic environmental assessment to the Convention on assessment of environmental impact in trans-boundary contents”.[77] Under preliminary assessment, the draft law is formal and incapable of bringing the institutions of environmental monitoring into compliance with European standards as far as strategic aspects go. It is also noteworthy that the draft law does not specify the need for timely public information and opportunity for submitting proposals in the assessment of the planned activities, which can have negative impact on environment.

 

9.    Legal acts adopted in 2012, which threaten with violations of environmental rights

9.1.          Law “On Amending some legal acts of Ukraine (on optimizing competences of executive bodies in the area of environment and natural resources, including at the local level) - draft law №10218.

The draft law registered by the people’s deputy Yu.Miroshnichenko on 28.08.2012 passed y the Supreme Rada of Ukraine  on 16.10.2012 with procedural violations of the Supreme Rada regulations, disregarding critical position of the Committee on the environmental issues, land use and liquidation of the Chornobyl disaster aftermath, and ignoring collective appeals of the NGOs, recommendations of the Chief Department of Justice and Chief Scientific-Expert Department of the Supreme Rada this draft law   proposing to  reject it. Many draft law provisions do not comply with the Constitution and Laws of Ukraine and ignore the requirements of the Constitutional Court of Ukraine.  

Its coming in force can lead to the ruination of the nationwide system of the environmental policy, renders the realization of its main components, constitutional guarantees of environmental safety, Ukrainian laws and international treaties in the areas of environmental protection and observance of the citizens’ human rights impossible.

This law liquidates the territorial bodies of the Ministry of Environment of Ukraine in charge of the complex management of environmental protection and coordination of the activities of all the power bodies responsible for the implementation of the environmental policy. The governmental competences will be transferred to the local state administrations. These competences cannot be fully realized without the territorial bodies of the Ministry of Environment. The introduction of this novelty will lead to massive complications in the exercising of the entrepreneurial rights and right to the natural resources’ use   by the physical and legal entities. Therefore, the clauses of Articles 1, 3 and 5 of the Constitution of Ukraine will be inevitably violated. E.g. the oblast’ state administration in the respective region will concentrate all the competences of the liquidated territorial bodies of the Ministry of Environment, that’s why the operation of the administration will be hindered by numerous appeals of stake-holders from the whole region.   

These innovations are contrary to the principles of the executive power bodies’ operation established by Articles 6, 19, 92 and 120 of the Constitution. Evidently any changes in the system of the central executive bodies should be aimed at safeguarding their integrity and systematic structure. Any other approach is fraught with systemic disorganization in their operation, and as a result, will entail the violations of human rights. 

President V. Yanukovych disregarded the appeals from non-governmental organizations and did not veto the draft law.

 

9.2 Law “On amending some legislative acts of Ukraine to improve the procedure of land plots’ allotment and change of their designated use” (  Закон «Про внесення змін до деяких законодавчих актів України щодо удосконалення процедури відведення земельних ділянок та зміни їх цільового призначення» (registered by the people’s deputy Yu.Miroshnichenko as entry  11116[78]).

On 02.10.2012 the Law was passed by the Supreme Rada in the second reading. The presidential veto was not used in spite of respective appeals from the scientists and non-governmental organizations.

Many provisions of the law are contrary to other laws of Ukraine, its international agreements; they pose a threat for the system of rational natural resources’ use and environmental protection by excessive liberalization of the procedure for land plots’ allotment for economic use. It stipulates a lot of changes into the articles “On Land Use”, “On Land Protection”, Land, Water and Forestry Codes of Ukraine on natural resources, which will deprive the environmental protection agencies of authority to approve all the materials related to land allotment, restrictions of economic activities, sites of economic operation facilities etc. Its coming in force will lead to the deterioration and reduction of the natural areas, especially of valuable lands, the lands of water and natural reserve fund, and, therefore, to the negative environmental impact and violation of the international environmental protection treaties signed by Ukraine.  

 

9.3 Violations of legal procedures in decision-making with respect to the construction of the energy units   № 3 and 4 of the Khmelnitsky NPP

Under Espoo Convention the construction of the new reactors stipulates prior consultations with all the stake-holders on the basis of the trans-boundary strategic environmental assessment.Under Article 3 of the Espoo Convention Ukraine is responsible for arranging joint trans-boundary environmental assessment with the participation of all affected countries prior to passing a decision on sanctioning or implementing the planned activity.

However, before the conclusion of the consultations on August  16,  2012 the Cabinet of Ministers of Ukraine (CMU) submitted the draft law “On location, design and construction of the energy units   № 3 and 4 of the Khmelnitsky NPP” №11088 to the Supreme Rada. This draft law was initiated by M.Azarov and the CMU headed by him.[79]  On September 6 the Supreme Rada passed the law №11088. The government which proposed the law violated a number of Ukrainian laws and international treaties addressing the environmental rights of the citizens.  

Under clause 2, Article 2 of the Law of Ukraine “On order of decision-making on location, design and construction of the nuclear units, designated for the handling of radioactive waste, which have nationwide significance” the Supreme Rada of Ukraine makes the relevant decisions only if the local bodies of executive power agree to the construction to be conducted in their area.  In fact, the explanatory note to the draft law contains no information with respect to the approval of the said objects by the local bodies of executive power.  

Article 5 of the said law enumerates a number of documents justifying the adoption of the law on location, design and construction of the nuclear units, designated for the handling of radioactive waste, which have nationwide significance. Specifically, it relates to the document containing the results of the consultative referendum on this issue, if it was held in the administrative/territorial units. This document was not submitted by CMU at the time of the draft law submission.  

Under Articles 3 and 5 of the Law of Ukraine “On order of decision-making on location, design and construction of the nuclear units, designated for the handling of radioactive waste, which have nationwide significance” the draft law in question should be accompanied by:  

The conclusions of the state environmental  expert assessment; results of the consultative referendum with respect to the nuclear unit; report on the ways of informing the neighboring countries about potential impact in the trans-boundary context in compliance with the law.

The list of documents quoted in the draft law №11088 does not contain the conclusions of the state environmental expert assessment. The technical and economic substantiation of the projects for the construction of the energy units   № 3 and 4 of the Khmelnitsky NPP which, under the law of Ukraine “On environmental expert assessment”, was to be held by the Ministry of Environment of Ukraine, never took place. Under Article 13 of this Law the environmental expert assessment is mandatory for the types of operation and objects of increased environmental hazard, while the lists of these types of operation and objects are compiled by the CMU. According to the CMU Resolution № 554 of July 27 1995 “ On the list of operations and objects of increased environmental hazard”[80] the nuclear power plants fall under this category.

The consultative referendum on the NPP construction was never held. At the time of submitting the draft law  №11088 to the Supreme Rada the CMU ignored the fact that Ostrih city council, Kopytkivska and Myrotynska village councils of Rivne oblast’ in  2011disagreed to the construction of the units 3 and 4. Zdolbuniv raion council and Bushcha village council of Rivne oblast’ passed no decision on the matter (addendum 30.08.2012)[81].

The public hearings were not held in all the settlements within 30-km zone around Khmelnitsky NPP. The majority of these hearings’ decisions contain substantial warnings and proposals, which so far were not taken into consideration either by the Ukrainian government, or “Energoatom”.

Under Article 3 of the Espoo Convention Ukraine is responsible for arranging joint trans-boundary environmental assessment with the participation of all affected countries prior to passing a decision on sanctioning or implementing the planned activity. Under Convention the construction of the new reactors requires consultations with all the stake-holders on the basis of the trans-boundary environmental assessment, which have not even started yet. Austria, Belarus, Poland, Slovakia, Hungary, Moldova Rumania recognized that the construction can negatively affect their territories, and proposed to start consultations with Ukraine. The report on the ways of informing the neighboring countries about potential impact in the trans-boundary context, attached to the draft law (addendum of 30.08.2012)[82], does not contain any information on the results of consultations between Ukraine and the countries involved.   The said report contains, instead, the letter of the Austria Government, dated August 27, 2011, reminding that Austria as far back as on 10.03.2011, requested additional materials on units 3 and 4 of the Khmelnitsky NPP for the expert assessment, but never received them. The report also contained another letter – from the Ministry of Environment of the Belarusian Republic, stressing Ukrainian non-compliance with Articles  2, 4 , 6 and 8 of Espoo Convention with respect to providing information on environmental impact assessment concerning the construction of units 3 and 4 of the Khmelnitsky NPP and ensuring public participation in the relevant discussion.   

The Ministry of Environment, responding to the letter sent by Rivne “Ekoklub” NGO on September 6, 2012 confirmed that as of today the ministry is just “anticipating recommendations and proposals from the state bodies and public of these countries in according with the Espoo Convention procedure. Therefore the procedure of public participation from the countries-stakeholders and consultations with the foreign countries are not completed”[83] According to the Ministry of Environment[84], as of October10, 2012 it received project-related comments from  Austria, Belarus and Rumania. The comments were sent for processing and consideration to the higher executive bodies.  

Currently the Committee on implementation of the Espoo Convention is considering the grievance of the Belarusian “Ekodom” NGO against Ukraine for violating the Aarhus Convention and Espoo Convention when making decisions on designing, environmental expert assessment and  construction of the units № 3 і 4 of the Khmenitsky NPP.

After the law №11088 came in force, Ukraine has violated articles 3-6 of the Espoo Convention, which can lead to negative consequences at the international arena.  Due to this law the CMU was nominated for the human rights’ activists’ anti-prize “Thistle of the Year” for the grossest violations of human rights.[85]

 

10. Recommendations

1.               The Cabinet of Ministers should implement the decisions of the meetings of the Parties to Aarhus Convention with respect to Ukraine in compliance with the law “On fundamental principles (strategy) of state environmental policy of Ukraine till   2020”.

2.               The Cabinet of Ministers should set up an Inter-agency working group to ensure the implementation of the Aarhus Convention  provisions in Ukraine, headed by one of the vice prime ministers.

3.               The Cabinet of Ministers, the Ministry of Justice, the Ministry of Environment should develop the draft laws on amending Land, Forestry and Water Codes of Ukraine to reflect  the provisions of the international environmental protection Conventions, principles of sustainable development and integral management of natural resources.  

4.               The Cabinet of Ministers the Ministry of Justice, the Ministry of Environment should develop the draft laws on amending the laws: “On Environmental Expert Assessment” “On Regulations of the Urban Development”, which will restore the credibility of the environmental expert assessment and the evaluation of the environmental impacts; public information and participation in this activity.

5.               The Cabinet of Ministers should finalize and approve the strategy and the National Action Plan on raising public awareness in sustainable development matters.

6.               The Cabinet of Ministers should, the Ministry of Environment, the Supreme Rada of Ukraine should accelerate the ratification of the UNECE Protocol on pollutant release and transfer registers, and amendment on  GMO to Aarhus Convention, protocol on strategic environmental assessment to Espoo Convention, implement the provisions of the protocols  in the national legislation, develop the draft resolution “On approving the procedure for the assessment of environmental impact in the trans-boundary context”.    

7.               The Cabinet of Ministers, the Ministry of Environment, the Supreme Rada of Ukraine should devise the draft laws “ On amending the Law of Ukraine “On regulations of urban development”, “ On the assessment of environmental impact” “On introducing changes to some legal acts of Ukraine with respect to the ratification of the protocol on strategic environmental assessment to Espoo Convention concerning the assessment of environmental impact in the trans-boundary context to restore the credibility of the environmental expert assessment and the evaluation of the environmental impacts; public information and participation in this activity.  

8.               The Cabinet of Ministers should initiate the convocation of Inter-Agency coordination council for the implementation of the Espoo Convention in Ukraine, which would consider the issues of the Espoo Convention parties’ decisions with respect to Ukraine; of approval and realization of the strategy of the Espoo Convention decisions’ implementation in Ukraine; to authorize one of the vice prime-ministers to perform the functions of the national coordinator on the Aarhus Convention and Espoo Convention implementation; to ensure participation of NGO members in the operation of the said council.  

9.               The Ombudsman should submit a petition to the Cabinet of Ministers of Ukraine, containing the proposal of implementing all the Constitutional and legal provisions, Espoo Convention and Aarhus Convention provisions with respect to the information access, public participation in the decision-making concerning design, expert evaluation and construction of the units   № 3 and 4 of the Khmelnitsky NPP.  

10.            The Ombudsman should submit a petition to the Supreme Rada of Ukraine containing the proposal of conducting the consultative referendum on the project of construction of the energy units   № 3 and 4 of the Khmelnitsky NPP in conformity with Article 5 of the Law of Ukraine “On procedure for decision-making concerning the location, design, construction of the nuclear units and objects, designated for handling the radio-active waste, which have the nationwide impact”.

11.            The Ombudsman should submit a petition to the Cabinet of Ministers of Ukraine, containing the proposal of initiating the procedure for the strategic environmental assessment of the blueprints, programs and law related to the construction of the units   № 3 and 4 of the Khmelnitsky NPP. If the government fails to respond adequately, the Committee on the Espoo Convention implementation should be approached with the grievance against the Ukraine’s actions, the government which violates both Aarhus Convention and Espoo Convention, as well as a number of the Ukrainian laws regulating the environmental rights of the citizens by passing the decisions concerning the designing, expert assessment  and construction of the units   № 3 and 4 of the Khmelnitsky NPP.

12.            The Ombudsman should, using the favorable situation (i.e. Ukraine’s leadership in the OSCE), propose the following steps to its representatives’ mission in this organization: 

·                 Approaching the parliaments of the OSCE region countries, which have not yet ratified the Aarhus Convention and the Espoo Convention, first of all, Russia and the USA, with the proposal of doing it in the nearest future;  

·                 Approaching the parliaments of the OSCE region countries, which have not yet ratified the Protocol on strategic environmental assessment to Espoo Convention, (Belgium, Bosnia and Herzegovina, Cyprus, France, Georgia, Greece, Ireland,Italy, Latvia, Macedonia,Moldova, Great Britain, Ukraine)  with the proposal of doing it in the nearest future;  

·                 Promoting a special resolution at the next OSCE Parliamentary Assembly, concerning steady consideration of the citizens’ right in designing, expert evaluation, strategic environmental assessment and construction of the Khmelnitsky NPP and Belarusian NPP.

 

 

 

[1] Prepared by O. Stepanenko, member of UHUHR board, executive director of “Zeleny svit” NGO, head of “Helsinki initiative– XXI”.

[2] National reports on the environmental situation in Ukraine for the years 2010 and 2011

http://menr.gov.ua/content/article/9921, http://menr.gov.ua/content/article/11797

[3] Statistical handbook “Environment of Ukraine” for 2011 of the State Statistics Service of Ukraine  - http://www.ukrstat.gov.ua/

[4] National report on the environmental situation in Ukraine for 2011  http://menr.gov.ua/content/article/11797

[5] Annual report on public health condition in Ukraine and sanitary/epidemiological situation/ ed. By R.Bohatyryova, , 2012

[6] State Statistics Service of Ukraine. Morbidity of population http://www.ukrstat.gov.ua/

[7] National report on the environmental situation in Ukraine for 2011 http://menr.gov.ua/content/article/11797

[8] Report “On the results of State Ecological Inspection and its territorial branches operation in 2012 http://dei.gov.ua

[9] http://www.ukrstat.gov.ua/operativ/operativ2005/tz/tz_rik/tz_u/ts_u.htm

[10] CMU Resolution of July 4,  2000,  № 1044

[11] http://170820.minagro.web.hosting-test.net/page/?13274

[12] Report “On the results of State Ecological Inspection and its territorial branches operation in 2012 http://dei.gov.ua/

[13] National report on drinking water and drinking water supply for 2011://minregion.gov.ua/images/Pidrozdily/MEDVED/_._2011_.pdf

[14] Concept of the state policy for waste management (draft)

[15] National report on the environmental situation in Ukraine for 2010 http://www.menr.gov.ua/ND_2010.pdf

[16] http://www.menr.gov.ua/content/article/201

[17] http://himprom.ua/eksklyuziv-krovyanoj-yad-vyvezli-iz-ukrainy-new640

 http://ru.decovita.com.ua/article/a-24.html

 [18] http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=114268&fp=110

[19] Report “On the results of State Ecological Inspection and its territorial branches operation in 2012 http://dei.gov.ua/

[20] http://www.menr.gov.ua/content/article/9919

[21] http://www.menr.gov.ua/content/article/9921

[22] http://menr.gov.ua/content/article/11797

[23] http://menr.gov.ua/content/article/7789

[24] http://www.menr.gov.ua/content/article/6010

[25] http://epl.org.ua/fileadmin/user_upload/dodatky_do_anonsiv/analiz_normdoc_pravky_Lizy.docx

[26] http://epl.org.ua/novini/anons/backPid/393/article/5331/

[27] http://menr.gov.ua/content/article/7550

[28] http://www.ukrstat.gov.ua/

[29] http://www.gp.gov.ua/ua/vlada.html

[30]http://minregion.gov.ua/

[31]http://minregion.gov.ua/

[32] National report on drinking water and drinking water supply for 2011http://minregion.gov.ua/images/Pidrozdily/MEDVED/_._2011_.pdf

[33] http://ecoternopil.gov.ua/index.php?option=com_content&task=view&id=9&Itemid=39

[34] http://zakon2.rada.gov.ua/laws/show/577-2011-%D1%80/page3

[35] http://www.ecoleague.net/34903999-195.html

[36] Project”Additional support of the Ministry of Environment of Ukraine in the implementation of sector budget support”

[37] http://menr.gov.ua/content/category/265

 http://www.menr.gov.ua/media/files/PublicAssessmentReport2011UKR.pdf

[38] http://epl.org.ua/novini/anons/backPid/1/article/5256/

[39] http://kisloroda.net.ua/news/view/13

 http://kisloroda.net.ua/news/view/19

[40] http://kisloroda.net.ua/news/view/31

[41] www.pryroda.in.ua/miniges

[42] http://epl.org.ua/novini/anons/browse/1/backPid/393/article/5280/

[43] http://epl.org.ua/novini/anons/backPid/393/article/5362/

[44] CMU Resolution № 771 of June 29,  2011 “On approving the order of public involvement into discussion on decisions which can affect the environment”.

[45] HACU Resolution of 09.10.12 on case № К/9991/15496/11 re: cassation appeal of the Ministry of Education and Science of Ukraine against the decision of the Circuit administrative court of  Kyiv of 13.01.2011 and Resolution of the Kyiv Administrative Court of Appeals of  10.03.2011.

[46] HACU Resolution of 10.10.12 on case № 38197/10 re: cassation appeal of the Ministry of  Environment against the resolution of Circuit administrative court of  appeals, city of Kyiv of 06.08.2010 and Resolution of the Kyiv Administrative Court of Appeals of  4.11.2010

[47] http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=115109&fp=60

[48] http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=115418&fp=40

[49] http://necu.org.ua/vs-skasovue-rishennya-zhukiv/
http://www.scourt.gov.ua/
http://helsinki.org.ua/index.php?id=1259398848
http://narod.ru/

[50] http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=114195&fp=110

[51] http://www.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=114265&fp=110

[52] http://kiev.pravda.com.ua/publications/4a7189bcf38fa/

[53] Section “Assessment of environmental impact” of the working project “Exploration of Pylypchanksy gypsum quarry in Borshchiv raion Ternopil oblast’

[54] Articles 25, 25-1 of the Law of Ukraine “On Environmental Protection”, pp 2 - 3 Art. 13 of the Law of Ukraine “On Access to Public Information”

[55] http://www.aarhusclearinghouse.org/news/1000433/?year=0

http://k-z.com.ua/, http://pryroda.in.ua/, http://www.radiosvoboda.org/,

http://www.helsinki.org.ua/ru/index.php?print=1344855597

[56] http://www.zfront.org/slovo-v-zaschitu-cheloveka-s-uschemlennym-dostoinstvom/

[57] http://www.zfront.org/nash-otvet-sherloku-holmsu/

[58] http://www.hr-lawyers.org/en/index.php?id=1265035383

[59] http://www.ribaki.org.ua/forum/printthread.php?t=1926

[60] http://www.menr.gov.ua/content/category/273

[61] Statement of the head of all-Ukrainian Environmental League T.Tymochko in Aarhus Center under the Ministry of Environment of Ukraine -
http://www.youtube.com/watch?v=wzT16UHsM5M&feature=plcp

[62] Order of the Ministry of Environment and Natural Resources of Ukraine № 569 of 29.10.2012

[63] http://www.menr.gov.ua/content/article/10526

[64] The Law of Ukraine “on Status and Social Protection of the individuals affected by the Chornobyl disaster” 

[65] http://w1.c1.rada.gov.ua/pls/radac_gs09/g_frack_list_n?ident=24371&krit=66

[66]Decision 2/5b “Ukraine’s fulfillment of its Aarhus Convention commitments” II meeting of the parties Almaty, 27.05.05  - http://www.unece.org/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.8.r.pdf

Decision III/6f  June 11-13,  2008 года “Ukraine’s fulfillment of its Convention commitments” - http://www.unece.org/fileadmin/DAM/env/pp/mop3/ODS/ece_mp_pp_2008_2_add_14_r_Ukraine.pdf

Decision IV/9h “Ukraine’s fulfillment of its Convention commitments”

http://www.unece.org/env/pp/mop4/mop4.doc.html

[67] http://zakon2.rada.gov.ua/laws/show/577-2011-%D1%80

[68] P. 52 – 55 Protocol of 37 meeting of the Committee on adherence to Aarhus Convention http://www.unece.org/fileadmin/DAM/env/pp/compliance/CC37/ECE.MP.PP.C.1.2012.5.aec.pdf

[69] http://www.minjust.gov.ua/upr/upr_project_dopovid.html

[70] http://epl.org.ua/fileadmin/user_upload/dodatky_do_novyn/UPR_Ukraine_EPL-2012.pdf

 http://greenworld.in.ua/news/1337442130

[71]UN Council on human rights, working group on Universal periodic review 14th session, Geneva, October22 –November 5 2012 - http://www.minjust.gov.ua/upr/urp_secondcycle.html

[72] Decision IV/2 - http://www.unece.org/fileadmin/DAM/env/documents/2008/eia/ece.mp.eia.2008.4.r.pdf

 Decision V/4 - http://www.unece.org/fileadmin/DAM/env/documents/2011/eia/decision.V.4.r.pdf

[73] http://www.unece.org/fileadmin/DAM/env/documents/2008/eia/ece.mp.eia.2008.4.r.pdf

[74] Report materials on the Project “Help to Ukraine in implementing Aarhus and Espoo conventions”  http://menr.gov.ua/content/article/9447

[75] http://zakon2.rada.gov.ua/laws/show/995_b99

[76] http://zakon2.rada.gov.ua/laws/show/156-2012-%D1%80

CMU Ordinance № 156-r of March 28, 2012 

“On approving the action plan for the implementation in 2012 of all-Ukrainian program for harmonizing the Ukrainian legislation with the EU legislation”  

[77] http://menr.gov.ua/content/article/11495

[78] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=44198

[79] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=44161

[80] http://zakon2.rada.gov.ua/laws/show/554-95-%D0%BF

[81] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=44161

[82] http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=44161

[83] http://www.ecoclubrivne.org/complete_new/ua/150

[84] The Ministry of Environment letter №20062/17/10-12 of  2.10.2012 in response to “Zeleny svit” request of 25.10.2012

[85] http://helsinki.org.ua/index.php?id=1352198687,  http://helsinki.org.ua/index.php?id=1352198824.

 

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