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Human rights in Ukraine – 2005: XIII. The Right to a Safe Environment

24.06.2006

1. THE RIGHT TO AN ENVIRONMENT THAT IS SAFE FOR LIFE AND HEALTH

Article 50 of the Constitution of Ukraine affirms that everyone has the right to an environment that is safe for life and health.

The Civil Code of Ukraine specifies that this right also includes the right to safe consumer products (food and everyday items), appropriate, safe and healthy conditions of work, housing and studying.

These provisions of Ukrainian legislation remain, to a large extent, declarations without any substance or implementation in practice since the same legislation provides no outline for steps towards their practical application.

This is reflected in the mass scale lack of observance or in fact violation of the right to an environment which really is safe for life and health.

In particular, according to statistics from the information and analysis company Eksor, over 30% of people surveyed considered that the right to an environment that is safe for life and health was not safeguarded at all, more than 40% answered that the right was implemented only to some extent, and a mere 1% said that it was fully achieved.

Parliamentary control bodies, for example, the Accounting Chamber of Ukraine, also point out the lack of effective state policy in this area.

 

 

Protection of the environment cannot wait![1]

The State Fund for the Protection of the Natural Environment (hereafter “the Fund”) was created to provide purpose-linked financing of environmental protection and resource saving measures linked with the protection of the environment and aimed at averting, minimizing or eradicating pollution to the natural environment. However this aim was not achieved through the fault of the main body in charge of allocating funds – the Ministry for Environmental Protection which, in violation of the Budgetary Code of Ukraine, did not ensure effective and lawful management of budgetary allocations of the Fund”. This was the conclusion reached by the Panel of the Accounting Chamber after reviewing the Report “On the results of the audit of the use of financing of the State Fund for the Protection of the Natural Environment from 2003 – 2005”.

The results of the audit demonstrate that unclear planning of work and reporting back on the results achieved lead to ineffective and unlawful use of budgetary allocations. As a result, 185.1 million UH, or 59.3 % of the Fund’s spending took place with violations of legislation.

The lack of a single state scientific and technical policy in the field of environmental protection led to a situation where 8.7 million UH  assigned from the central office for scientific investigations and the implementation of mechanisms for ensuring the protection of natural resources, were used inefficiently. The audit showed that, in violation of the Resolution of the Verkhovna Rada of Ukraine “On the basic direction of Ukraine’s state policy in the field of environmental protection, the use of natural resources and the safeguarding of environmental safety”, the Ministry, having defined the rules and procedure for financing comprehensive measures using the Fund’s resources, is not ensuring that effective and comprehensive measures on saving resources are carried out. The appropriate protection and rational utilization of earth, mineral and flora resources have not been provided, nor the conservation of the nature reserve fund. Safety measures regarding atomic energy and radiation are also not being funded.

In his address to the Panel Meeting, the Chairperson of the Accounting Chamber, Valentyn Symonenko, stressed: “The work of the Ministry cannot be considered effective when a fourth of the funds available in 2003 and a fifth in 2004 (overall – 51,5 million UH) were not used and were returned to state revenue, and each third UH from the funds actually spent, went on something which had no direct impact on the environment”.

In 2005, as of 1 November, the situation had worsened! The Ministry had not ensured that the Fund’s money was used despite the fact that the financial resources coming into the Fund amounted to 97,1 million UH. And that was at a time when in many Ukrainian cities the problem of fresh drinking water or that of air pollution were everyday issues needing to be resolved.

In contravention of Article 25 of the Law of Ukraine “On protection of the natural environment”, from 2003-2004 the Ministry did not prepare and submit for the Verkhovna Rada’s consideration an annual National Report on the state of the environment in Ukraine. .

The conclusions of the Panel of the Accounting Chamber show that there is no mechanism in Ukraine for carrying out state policy in the sphere of environmental protection and the particular attention of the Cabinet of Ministers of Ukraine to this issue is needed.

Press Service of the Accounting Chamber

 

It should be noted that Ukrainian legislation does not have a holistic concept for exercising and defending the right to an environment which is safe for life and health, although it would be wrong to not mention certain positive trends towards developing mechanisms for ensuring and exercising certain component elements of this right.

For example, on 6 September 2005 a new version was passed of the Law of Ukraine “On the quality and safety of food products”.  This sets out more stringent demands with regard to ensuring that food products are safe and of the appropriate quality.  It defines in detail methods and ways which can help the state to ensure that the life and health of the population are protected from harmful factors which may be linked with food items.

In 2005 amendments were also made to the Law of Ukraine “On ensuring the sanitary and epidemiological well-being of the population” which intensify control over economic activities whose implementation can be associated with potential threats to human health.

Providing the population of Ukraine with drinking water as a way of ensuring their right to a safe environment and protecting the population’s health is a top-priority issue in many regions of Ukraine. Therefore the adoption by the Verkhovna Rada in 2005 of a nationwide state program “Drinking water for Ukraine” for 2006 – 2020, aimed at implementing state policy on providing the population with high-quality drinking water is an important priority area of activity.

Among new additions to Ukrainian legislation, one should also note the Law of Ukraine passed in 2005 “On measures to avert or decrease the use of tobacco products, and their harmful impact upon the health of the population” which makes it an administrative offence to smoke tobacco products in prohibited areas.

The Cabinet of Ministers’ Action Plan called “Towards the People” from 4 February 2005 declares its aim to be the ensuring of the right to a safe environment. Among the important steps directed at achieving this aim are the modernization and improvement of safety standards of atomic energy stations,  the transformation of the confinement “shelter” at the Chernobyl  Nuclear Power Plant into an environmentally safe system, reduction in emissions and dumping of pollutants into the natural environment, an increase in the role and accountability of local executive bodies and bodies of local self government in the field of manmade environmental safety, the move towards decentralization of administration in this area.

Not only legislative initiatives have an important role to play in actualizing the right to an environment which is safe for life and health, but also the activities of  bodies of local self government. In 2005 Kyiv joined the San Francisco Urban Environmental Accords. In concluding its environmental agreement, Kyiv underlined its aspiration at the local level to use all measures to ensure the right to an unpolluted, healthy and safe environment for all members of our society.

Despite the stable development of environmental legislation in Ukraine, including laws on ensuring the right to a safe environment, the level of adherence to these laws is extremely inadequate. The lack of compliance with environmental protection requirements in all areas of the national economy is leading to a constant increase in manmade impact on the natural environment.

In Ukraine the tendency continues where, for the sake of economic gain, the state is jeopardizing the right of a large part of the population to an environment which is safe for life and health.

In 2005, for example, despite active protests from the public, the national atomic energy company “Energoatom” continued the construction of the Tashlyk hydroelectric power plant which is part of the South Ukraine Nuclear Power Plant Complex.

No consideration was taken in this of the fact that according to information from the open joint stock company “Ukrhidroproekt” which is the designer for the final construction stages of the Tashlyk power plant, changes in the current state of the environment make it impossible to correctly use 1992 criteria for an Environmental Impact Assessment (hereafter EIA) to reach any understanding of the effect that the construction of the Tashlyk power plant would have on the natural environment.

In addition, according to data from the Ukrainian State Committee for Water Management, the inclusion of the cooling pond of the South Ukraine Nuclear Power Plant (the Tashlyk Reservoir) into a single hydraulic system together with the Oleksandrivske Water Reservoir would form a direct system of water supply to the Southern Bug River which is a source of water for the southern zone of the country.  This is in contravention of water environmental legislation, and the sanitation passes do not safeguard the water supplies and the appropriate quality of water in the lower region of the Southern Bug River. 

There is a lack of effective control over compliance with legislative requirements for avoiding negative effects on the environment – such preventive measures are either not carried out at all, or on a very low level.

The absence of appropriate preventive checks is evidenced by the growing number of accidents connected with the presence in the natural environment of harmful (polluted) substances at a concentration in excess of permissible norms for soil, the air, surface water and for drinking water.

In the majority of cases state bodies embark upon controlling activities already after the damage to the environment and the violations to people’s environmental rights have taken place.

As a result of the production activities of the closed joint stock company “Magniy” (the town of Kalush in the Ivano-Frankivsk region), in January 2005 an emergency situation arose resulting in an excessive release of chlorine into the atmosphere.  Agencies of the Ministry for Environmental Protection carried out a check as to whether legislation was being adhered to and applied the appropriate sanctions only after the pollutants had been released into the atmosphere.

Accidents where offending enterprises are not held responsible for polluting the environment and violating the right to a safe environment have become a mass-scale phenomenon. In a number of instances, the liability foreseen by the law was absurdly small when compared with the damage inflicted to the environment or the expenditure required to avert this damage. From the financial point of view businesses are better off violating environmental legislation and paying negligible fines than spending large amounts on measures for environmental protection

According to statistics from the Ministry for Environmental Protection[2]

„During 2006 the inspection subdivisions of the territorial bodies of the Ukrainian Ministry for Environmental Protection identified 91 cases of emergencies involving pollution of the natural environment, this figure being 24 down on the previous year. Of these:

–  42 cases (47%) were connected with pollution of water resources which cost the state 60,039 thousand UH;

-  21 cases (23%) involved pollution of soil resources, the losses incurred amounting to 580 thousand UH;

-  13 cases (14%) involved air pollution, the losses coming to  220 thousand UH;

-  10 cases (11%) involved pollution as the result of accidents involving radiation;

-  3 cases led to the death of large numbers of fish, resulting in losses of 305 thousand UH;

-  1 case (1%) was of pollution or damage to a part of the nature reserve fund;

-  1 case (1%) was of damage to flora (costing 63 thousand UH).

The total amount of losses incurred as a result of emergencies involving pollution of the natural environment in 2005 came to around 70,2 million UH, of which approximately 7,2 million (10%) were retrieved from the culprits.

The greatest losses inflicted upon the state involved pollution emergencies linked with the water of the Azov and Black Sea (68,8 million UH), similar emergencies with water objects in the Sumy region (116,3 thousand UH), pollution emergencies of soil resources in the Mykolayiv region (468,3 thousand UH.), air pollution emergencies in the Luhansk region (90,6 thousand UH), the death of fish on a mass scale in the waters of the Black Sea (296,3 thousand UH).”

State bodies do not often turn to the courts requesting that compensation be awarded for the damage caused the environment and that the state of the environment be restored.

In Ukrainian legislation there are no principles for compensating damage inflicted through the violation of the right to an environment which is safe for life and health. As a result of this in Ukraine there is virtually no case law through the courts on defending this right. Isolated rulings issued by courts in defence of the right to a safe environment are rather the exception, than the norm.

The Dubetsky family who live in the village of Silets in the Sokalsky district of the Lviv region lodged a civil suit to the state enterprise “Lvivvuhillya” [“Lviv coal”] demanding that the latter move them from the sanitary protection zone of the mine “Vizeiska” which is a structural subunit of “Lvivvuhillya”.

As a result of the activity of the “Vizeiska” mine, the Dubetskys’ land was constantly flooded, on the territory of their land and garden the amount of pollutants in the water, soil and air by far exceeding permissible norms of their concentration, thus violating their right to an environment safe for life and health.

On 26 December 2005 the Chervonohradsky Town Court accepted the suit brought by the Dubetsky family and bound the state enterprise “Lvivvuhillya” to provide the Dubetsky family with a flat so that they could move away from the polluted territory.

Having identified violations of the right to an environment safe for life and health, state bodies do not apply means needed to eradicate the violations, and the decisions which are adopted for ensuring the right to a safe environment are in the majority of cases declarative, and are not implemented.

For example in the summer of 2005, concentrations in excess of acceptable norms of oil products were discovered in the drinking water of the district of Mlynky in Drohobych, Lviv region. The situation with the polluted water was recognized as being exceptional and tbodies of local self-government, sanitation and epidemiology surveillance agencies, the Ministry for Environmental Protection and the Ministry for emergency situations  were enlisted to help solve the problem.

After a number of joint meetings, the decision was taken to provide the polluted district with clean drinking water, and later steps were outlined for providing residents with clean drinking water.  None of the decisions taken were implemented and the residents of the district continue to use polluted water.

Inadequate financing of environmental protection measures undoubtedly encourages the lack of implementation of decisions of state bodies regarding the exercise and defence of the right to a safe environment both by the state and at he local level.  The lack of sufficient funding for environmental protection measures is also caused by the fact that spending is in the first instance directed at compensation for damage caused by the violation of the right to a safe environment, and not at preventing the violation of this right.

 

2.  The Right of access to environmental information

Everyone has the right to an environment that is safe for life and health. It is impossible to safeguard this right without ensuring that other rights are exercised, in particular, the right of access to environmental information[3].

On 6 July 1999 Ukraine ratified the Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention)[4]

In compliance with the Aarhus Convention, amendments were introduced to the Laws of Ukraine “On protection of the natural environment” and “On environmental expert studies”.  In order to carry these out, on 18 December 2003 the Ministry for Environmental Protection of Ukraine issued Order № 169 approving Provisions on the rules and procedure for providing environmental information[5]

In the Human Rights Organizations Report “Human Rights in Ukraine – 2004”, we already analyzed mechanisms for applying this Convention in Ukraine.

Despite the reasonable quantity of normative legal acts for regulating access of the public to environmental information, practice shows that provisions of this legislation are not fulfilled in adequate measure, or not at all, and that legal regulation of the issues outlined here are not effectively provided for in current legislation.

Some problems are linked to general shortcomings in ensuring the right of access to information which are covered here, and in the Report for 2004, in the section on access to information. Such general deficiencies are vividly demonstrated by practice involving access to environmental information. 

In particular, problems over access to environmental information are caused by the unlawful behaviour of officials of local state bodies and bodies of local self-government, as well as by contradictory legislation.

Such behaviour includes not providing answers to formal requests for environmental information or simply not responding at all.

The international non-profit-making organization ““Environment – People – Law” (EPL) has over a period of many years been providing legal assistance to residents of the Vilshyna settlement in Silets, the Sokalsky district of the Lviv region who are defending their right to an environment safe for life and health. In order to provide such legal support, EPL needed to obtain information about the measures applied to deal with an emergency involving the flooding of the Vilshyna settlement in 2005. To this end, EPL sent a formal request for information to the Department of Emergency Situations. It did not receive any response to the request in the time period stipulated by legislation.

It is fairly common for officials of state bodies and bodies of local self-government to refuse to provide environmental information requested on grounds which are in contravention of Ukrainian legislation. For example, the claim may be made that there is no well-founded objective for receiving the environmental information or no information regarding its subsequent use.

Ukrainian citizen, H., on 23 July 2005 sent the Izyaslavsk district state administration of the Khmelnytsky region a request for information, asking to be sent in the appropriate manner an authorized copy of tat district state administration’s Instruction from 24 March 2004 No. 85/2004 (on reducing the water level in the upper part above the lock of the river Horyn) and copies of the documents on the basis of which the Instruction was adopted. In its Letter from 26 August 2005 No. 292 the Izyaslavsk district state administration of the Khmelnytsky region refused to provide copies of the official documents requested since Mr. H. had not indicated what he wished to do with the documents.

In a number of cases the environmental information has not been provided because the relevant state bodies or bodies of local self-government have unwarrantedly classified the said information as being on restricted access, as documents and information which cannot be provided in response to such formal requests.

A court case continued during the entire year over the refusal by state bodies of the city of Kryvy Rig to provide A. Bily with the opportunity to see the planning documents of the regional and city councils drawn up in accordance with the Resolution of the Cabinet of Ministers of Ukraine from 10 January 2002 No. 14 “On approving an Inter-disciplinary comprehensive program “The Health of the Nation”

His approach with regard to this to the governing body of the city received the following response from the Head of the Department of Health of the Executive Committee of the City Council,, V. Krupoder:

„With regard to the subject matter of your appeal, the Department of Health informs that in accordance with Article 21 of the Law of Ukraine “On Information”, information of bodies of local self-government is officially documented information which is produced as a result of the ongoing activity of bodies of local self-government.

The decision in question, “On the regional Inter-disciplinary comprehensive program “The Health of the Nation” for 2002 – 2011” of the Dnipropetrovsk Regional Council is not an act of bodies of local self-government, as per Article 59 of the Law of Ukraine “On local self-government in Ukraine”.  That is, this decision can be considered confidential information as foreseen when dealing with nformation which is in the possession of another body and is circulated at their wish.

 In view of the above, the Department of Health of the Executive Committee of the City Council is unable to provide you with a copy of this decision.”

It is not rare for officials of state bodies or bodies of local self-government who receive requests for environmental information to send the member of the public to other bodies although they themselves should be in possession of the information sought.  Alternatively they do not keep the time periods set down for considering whether the information requested can be provided.

On 18 March 2005 the Dniprodzherzhinsk public environmental organization “Holos pryrody” [“Voice of Nature”] sent the Head of the Lviv City Council a formal request for information on the waste discharges from industry into the Lviv sewage system. In April 2005 a letter arrived providing no response to the questions which the organization had asked.

On 7 June 2005 the public organization once again approached the Lviv City Council and repeated their request to provide complete information in response to their list of questions. These questions concerned the Lviv city municipal purification plants which take waste water from the brewery and yeast factory, and the water use and disposal at the brewery and yeast factory.  The repeat request received a response from the Lviv City Council Executive Committee which only answered two of the questions, those concerning the contact details of the factories.  No answer was provided to the remaining 14 questions, and instead there was a recommendation to seek the environmental information directly from the factories.

Mechanisms for actively publicizing environmental information via the Internet remain insufficiently developed and applied in Ukraine. Although the country has taken the first steps towards informing the public through websites of state bodies and bodies of local self-government, their quality and comprehensive nature elicit serious reservations (for example, the lack of websites – of 27 territorial departments of the Ministry for Environmental Protection of Ukraine only 9 have their own websites[6], outdated information or lack of it, difficulty in looking for information).

„In Ukraine no clearly-defined system has been created for publicizing information about the state of component parts of the natural environment, about factors having an impact on the state of the environment and of health, people’s living conditions, as well as about state policy in this area and the situation as regards legislation on environmental issues.

Civil servants, and not only representatives of those structures within the Ministry for Environmental Protection, but those of other state institutions holding environmental information, are far from always eager to assist in systematically making such information public. The greater part of the public, particularly in the regions, have no access to information about the rate of waste disposal of the enterprises polluting the environment with whom they live, about the state of the air, water, soil and natural objects, as well as about biological diversity. The management of the enterprises and other objects polluting the environment are still less interested in making information about the state of the environment public”.[7]

The question was therefore raised in the Verkhovna Rada of holding parliamentary hearings “On the situation and steps for improving public access to environmental information, public participation in decision-making and access to justice in environmental matters within the context of Ukraine’s European integration”  They were planned for October 2005. The resolution on the hearings was already on the agenda for 8 September 2005, however it was not in the end voted on. The deputies it would seem did not understand the importance of this issue.

 

3. The right of members of the public to take part in the decision-making process of state bodies

The right of individuals to participate in the management of state matters, including issues involving the environment and environmental rights, is enshrined in the Main Law of Ukraine – the Constitution (Article 38), together with the right to take part in nationwide and local referendums.

The Law of Ukraine “On the protection of the natural environment” specifies the procedural rights linked to decisions regarding the environment, in particular:

1) the right to take part in debating and tabling proposals for draft laws of normative legal acts and material on locating, erecting and reconstructing construction projects which could have a negative impact on the environment,  in presenting recommendations to state bodies and bodies of local self-government and legal entities taking part in the decision-making process on these issues;

2) participation in devising and carrying out measures on environmental protection, and rational and integrated utilization of natural resources;

3) participation in  public hearings or open sessions on issues involving the influence of planned activities on the environment at the stage of locating, designing, constructing and reconstructing construction projects and in carrying out public environmental expert studies.

It is interesting that the third group of rights effectively duplicates the first group, since public hearings or open sessions are a form of public participation during the carrying out of environmental expert analysis of documentation on the construction, location and reconstruction of construction projects, while participation in public environmental expert studies is a means of taking public opinion into consideration when making decisions which could have an impact on the environment.  For example, public environmental expert opinions may be sent to bodies responsible for taking decisions on issues involving the location of certain construction projects or carrying out certain environmentally harmful activities and have recommendation status.  In addition, the right of legal entities taking part in decision-making on these issues to table proposals to state bodies or bodies of local self-government would be difficult to call an independent right since it is one of the forms of public participation in debating and presenting proposals to material on the location of certain environmentally dangerous objects, etc. For example, Article 11 of the Law “On environmental expert studies” sets out forms of public participation in the process of environmental expert analysis, which includes speaking out in the mass media, presenting written comments, proposals, recommendations, including representatives of the public in expert groups and commissions.

The Aarhus Convention foresees the right to participate in decision-making on specific types of activity, to participate in addressing issues concerning plans, programs and policy linked with the environment and in preparing normative legal acts. In carrying out the Convention’s provisions, the Ministry for Environmental Protection drew up its Regulations which slightly extend the types of decisions which the public can become involved in.

For example, the regulation regarding public participation in decision-making in the area of environmental protection gives a list of types of decisions the public can take a role in which involves issues that have or could have a negative influence on the state of the environment.  Such issues include:

the preparation of inter-governmental, state, regional, local and other programs, local action plans, strategies and other documents;

the drawing up of draft laws and of other normative legal acts;

carrying out state environmental expert studies with the use of 1992 material on Environmental Impact Assessment of dangerous construction projects and types of activity;

the issuing of appropriate documents for the use of natural resources, for the deliberate release of genetically modified organized organisms into the environment, as well as activities which are connected with polluting the natural environment, handling dangerous substances, waste products, as well as their disposal;

expenses connected with undertaking environmental protection measures financed by funds for environmental protection. 

The Regulations of the Ministry for Environmental Protection thus broadens the scope of issues which the public should take a role in, and extends them to a national context taking into consideration specific features of the process of decision-making in Ukraine.

The right of the public to participate in decision-making can, for convenience when illustrating the state as regards their adherence in Ukraine, be loosely divided according to their focus into the following groups:

1)  participation in debating and putting forward proposals for drafts of normative legal acts, in drawing up inter-governmental, state, regional, local and other programs, local action plans, strategies and other documents;

2) participation in debating and putting forward proposals on material on the location, construction and reconstruction of construction projects which could have a negative influence on the state of the environment;

3) the issuing of appropriate documents for the use of natural resources, for the deliberate release of genetically modified organized organisms into the environment, as well as activities which are connected with polluting the natural environment, handling dangerous substances, waste products, as well as their disposal;

4) participation in the preparation and execution of measures for protecting the environment, for ensuring rational and integrated use of natural resources, participation in decision-making on expenditure connected with carrying out environmental protection measures financed by funds for environmental protection.

 

3.1. participation in debating and putting forward proposals for drafts of normative legal acts, in drawing up inter-governmental, state, regional, local and other programs, local action plans, strategies and other documents.

The right to take part in discussing and making suggestions on drafts of normative legal acts is a vital prerequisite of a democratic society. This right is virtually not complied with in Ukraine since drafts of normative acts are not widely publicized among the population, with only isolated drafts able to be found on the websites of the appropriate ministries or the Verkhovna Rada of Ukraine. Taking into account the fairly small percentage of members of the public who have access to the Internet, this way of ensuring the right of citizens to put forward proposals on drafts normative legal acts must be seen as ineffective.

With regard to public debate on draft laws, aside from isolated exceptions, this process does not take place at all. For example, the draft of the new Forest Code of Ukraine which foresees the possibility of privatization of land plots of the Forest Fund was approved by the Verkhovna Rada on 8 February 2006 and signed by the President without any preliminary public discussion.

Unfortunately state bodies do not understand and do not have a mechanism established by law for holding debate on drafts of normative legal acts.  Neither the Verkhovna Rada, nor the President, nor the Cabinet of Ministers of Ukraine have the relevant instructions or any other documents which would regulate the procedure for organizing public consideration of normative legal acts, or the process of gathering, processing and analyzing proposals from the public on specific draft laws.

Such debate on drafts of normative legal acts often only takes place in cases where public organizations have been involved in drawing them up, or where a grant has been received for their preparation, where there has been considerable coverage of a particular draft act, or where state bodies get involved in response to active members of the public who, of their own initiative, send them their comments without waiting for formal public debate. 

From our experience in EPL (““Environment – People – Law”)  we can say that sometimes even drafts of normative legal acts are not only not circulated, but are actually made inaccessible to the public. We learned, for example, from the mass media about a draft version drawn by the Ministry of Fuel and Energy of Ukraine of The Basic Principles of Ukraine’s Energy Strategy up till 2030. This strategy foresees the development of nuclear energy and plans to build over ten nuclear reactors which, obviously, filled us with outrage and concern. In October 2005 we therefore approached the Ministry of Fuel and Energy in order to receive copies of this document.  We asked for information about the procedure for gathering comments and for public debate of the said document, but received no response and therefore prepared and lodged with the court the appropriate civil suit. In the meantime, on 15 March 2006 the Cabinet of Ministers approved the energy strategy without any public debate.

On 15 September 2005 the President of Ukraine issued a Decree “On ensuring public participation in the formation and implementation of state policy” aimed at developing effective mechanisms for the partnership of state and institutions of civic society, at improving the activities of state bodies and bodies of local self-government and at increasing public impact on the process of state decision-making.  Measures were set out to undertake before 1 November 2005 public expert studies on the activities of state bodies and bodies of local self-government with assessment of the level of their interaction with members of the public and with civic organizations.

This Decree did not become widely known and there is no evidence of any expert evaluations of the activities of state bodies having been carried out.

Such an unsatisfactory situation with regard to the right of the public to take part in commenting on drafts of normative legal acts cannot be considered normal, and citizens need to fight it and demonstrate a more active civic position.  This may be expressed by lodging complaints with the courts, or using other means of demanding that the public be included in making comment on the most important documents regarding protection of the environment.

One must also mention the involvement of individuals and the public in general in commenting on the National Reports on the Implementation of Multilateral Environmental Agreements. Throughout 2005 the environmental law NGO  “EcoPravo-Kyiv”[8], with the support of the UN Environment Programme (UNEP), carried out a project aimed at promoting public involvement in the preparation of National Reports on the Implementation of Multilateral Environmental Agreements (MEA), specifically: the Convention on Access to Information, Public Participation an Access to Justice in Environmental Matters (Aarhus Convention); the UN Framework Convention on Climate Change; the Convention on Biological Diversity and the Convention on the Protection of the Black Sea from Pollution.  Since the public has an important role to play in the implementation of MEAs yet there is only limited experience of public involvement in the process of national report drafting, “EcoPravo-Kyiv”, together with the Ukrainian Ministry for Environmental Protection, have endeavoured to identify optimal and effective ways of involving the public in the process of national reporting on the implementation of MEAs which will make it possible in the future to use this mechanism more effectively and to secure it as a legal tool.

Debate held in September 2005 in the Aarhus Information and Training Centre of the Ukrainian Ministry for Environmental Protection on the Draft of the Third National Report of Ukraine on the Implementation of the Convention on Biological Diversity and the mechanisms for involving the public and other interesting parties in the preparation of national reports under the Convention demonstrated the level of public concern regarding the resolution of these issues. Many of those participating stressed the lack both of state priorities with regard to preserving biological diversity, and an environmentally systematic approach to the problem of using natural resources and averting their becoming exhausted.

3.2. Participation in debate and the presentation of proposals on material regarding the location, construction and rebuilding of construction projects which could have a negative impact on the state of the natural environment

One of the most widespread ways of ensuring the right to participation in debate and in putting forward proposals on material regarding the location, building or  rebuilding of construction projects which could have a negative impact on the state of the natural environment is seen in the role of members of the public in the process of environmental expert studies.

The exercising of the right of individuals to take part in the process of state environmental expert studies on the implementation of construction projects and types of activity which present heightened environmental hazards is promoted by the publication in the mass media of information regarding the environmental effects of the activity indicating the beginning of the process of carrying out state environmental expert studies.  Although the cases where the publication is late, or where it does not provide details about the aim or the ways of informing the public, about the body to whom one should address ones comments and opinions, or the timescale for carrying out the analysis and the place where one can read the documentation on the construction work are fairly frequent, the basic trend is positive, and the publication of such applications makes participation in the expert study available to at least those members of the public and civic organizations who associate such an application with the beginning of the process of carrying out state environmental expert studies by bodies of the Ministry for Environmental Protection, or by the Ministry itself.

During the most recent years of its activity, EPL has lodged a number of civil suits against the Ministry for Environmental Protection (departments for the environment and natural resources in the regions) appealing against the conclusions of environmental expert studies. These were linked with the fact that the Statement on Environmental Consequences was not made public on time, or at all, which constituted both an infringement of the procedure for carrying out state environmental expert studies, and a violation of the public’s right to participate in the expert study. This has achieved the effect that the bodies carrying out the environmental expert studies have begun to make sure that the required Statement is published and to involve the public in commenting on the material which is provided in state environmental expert studies.

In 2005 the Ministry for Environmental Protection twice provided the public via the Aarhus Centre with documentation for an environmental impact estimation (EIA)  on the construction of Phase II of the deep water Danube -  Black Sea Canal via the Bystroye Estuary for their comments. This was preceded by total lack of openness about the process of the civic TEO [Technical Economic Justification] expert study and documentation at Phase I of the Danube - Black Sea Canal in 2004 and  the refusal to allow the public access to EIA documentation. One of the shortcomings of the system for involving the public in environmental expert studies is that only a limited number of members of the public (those on the Centre’s database) are aware of the existence of EIA documentation in the Aarhus Centre, which makes the response to the documentation weak.

After repeated complaints from EPL and other environmental protection organizations during 2005 over the illegal construction of the gas pipe Yalta – Foros – Sevastopol through the territory of the Yalta mountain and forest nature reserve, in the absence of a positive conclusion from a state environmental expert study, the Ministry for Environmental Protection provided the Aarhus Centre with the EIA Material on the gas pipe for public comment on the material. EPL and a number of organizations send their critical comments on this activity which resulted in the Ministry issuing a negative conclusion from the state environmental expert study on the plan to build the gas pipe[9]

On 27 May 2005 the Second Meeting of Parties to the Aarhus Convention began in Almaty (Kazakhstan).  More than 30 countries who are signatories to the Conventions approved a decision to impose political sanctions against Ukraine over its violation of the basic provisions of the Convention through the construction of the deep water Danube - Black Sea Canal. In response to the complaint from the environmental law NGO EPL (then named EcoPravo-Lviv), back in February 2005 the Committee on Observing the Convention acknowledged that Ukraine had breached its commitments as regards ensuring the transparency of the construction, not least by ignoring public opinion, and with regard to the basic rights of the public to information and participation in the holding of state environmental expert studies[10].

In a number of regions active citizens take part in state environmental studies on construction projects which concern them (for example, the construction of nuclear power plants) by sending the departments for the environment their comments, opinion, sometimes as collective appeals reflecting the attitude of local residents to a particular project.

One can thus speak of a positive tendency as regards the exercising by citizens and NGOs of their rights, and the issue of whether this becomes a standard part of the procedure of a given state body depends in the first instance on the activity of citizens themselves, as well as on the level of their legal knowledge.

One of the forms public participation can take is the carrying out of public environmental studies. This, however, occurs very rarely due to various difficulties with finding experts, gaining access to the necessary documentation for comment, the time-consuming nature of such studies, as well as because the conclusion have only a recommendatory status.

On 8 September 2005 the Law of Ukraine “On the Rules and Procedure for taking decisions on the location, planning and building of nuclear power plants and installations intended for handling nuclear waste problems which are of national significance”.

Article 3 of this Law assigns the public the modest role of adviser. It is foreseen that state bodies at various levels will take decisions after carrying out a local advisory survey of Ukrainian citizens (a consultative referendum) on the issue. Bearing in mind the lack of definition as regards the procedure for the survey and the accustomed control exercised by state functionaries, one can assume that the results of such surveys will not be given any particular weight.  The role designated the public here does not comply with the objective “to increase the impact of the public in state decision-making” declared in the Presidential Decree “On ensuring public participation in the formation and implementation of state policy”.

 

3.3  The issue of appropriate documents for the utilization of natural resources, for the intentional release of genetically modified organisms into the environment, for activities connected with the pollution of the natural environment, the handling of hazardous substances, waste products and their disposal, as well as participation in drawing up and carrying out measures to protect the environment, the rational and integrated utilization of natural resources, participation in decision-making with regard to spending connected with environmental protection measures which are financed by funds for the protection of the natural environment.

Unfortunately, in this area it would be difficult to find any positive examples of such public participation.

One of the ways of ensuring the participation of individuals and the public as a whole in decision-making by environmental protection agencies is the activity of public councils under the auspices of environmental departments in the regions, however such councils have permanent members and consequently a fairly limited number of their “own” people and organizations that play a role.  These councils, most often, have greater access to information about the activities of departments and how they go about taking decisions and try to participate in such decision-making in cases which have received a great deal of public attention. For example, it is known that the Ministry for Environmental Protection reports to the Public Council on the Use of Finance of the State Fund for the Protection of the Natural Environment, however the public are not involved in the actual process of taking specific decisions on how the financing is distributing between contract applicants.

The situation as regards the observance of citizens’ rights to take part in decision-making on issues which have an impact on the environment is thus characterized by small, yet positive trends towards wider involvement of citizens in commenting on normative legal acts, documents on construction projects, etc. However, the exercise of these rights depends, in the first instance, on the active participation of citizens themselves, and this needs to be increased through environmental law awareness, the broadening of positive experience and impact on environmental awareness.

 

4    Defence through the courts of environmental rights

  In order to ensure the right to an environment which is safe for life and health, the right of access to information, public participation in decision-making on environmentally significant issues, and the exercise of other environmental rights, the appropriate effective court control is required, with the help of which people can quickly defend and reinstate their violated rights.

  The Civil Procedure Code (CPC) of Ukraine stipulates that all individuals have the right to approach the court in defence of their violated, unrecognized or disputed rights, freedoms or interests. According to the rules of the CPC, one may thus use the courts to defend such violated rights as the right to an environment which is safe for life and health, and the right to compensation for the damages incurred by the violation of this right, the right to general use of natural resources, the right to own natural resources, the right of free access to environmental information, to have any hazards caused as a result of business or other activities which threaten people’s health removed.

  For example, in the summer of 2005, EPL (representing the interests of local residents) initiated procedure appealing against the conclusion of the state environmental expert study into a building plan for a motorway between Lviv and Krakovets[11].  According to the plan, the motorway is to pass through the territory of the villages of Zavadiv and Zashkiv, as well as through a water reservoir which has enormous potential for recreation.  The width of the earth strip under the road is around 30 metres, and the vehicle capacity would be approximately 20 thousand vehicles per day. The road is designated as Category 1 despite the fact that during the environmental expert studies and the taking of other decisions related to the plan, public opinion was not taken into consideration. After numerous drawn-out court hearings, the Solomyansky District Court in Kyiv did not in fact recognize the suit brought by residents to be justified, and did not revoke a decision of environmental impact which had been made without taking the opinions of concerned members of the public into consideration.

  Yet is it possible to turn to the courts in the case of a violation of environmental protection legislation committed by a participant in economic relations or by a state body, when no subjective right was breached?  Can the average citizen lodge an appeal in the courts against, for example, a Presidential Decree passed with infringements of the Law “On the Nature Reserve Fund”, basing this on the legitimate interest in preserving the environment? 

Ukrainian citizen, D.B. Skrylnikov, lodged a civil suit with the Local Court of the Pechersky District in Kyiv, asking that Point 3 of the Presidential Decree on the decision of the Council of National Security and Defence of Ukraine from 6 June 2003 “On the situation as regards the implementation of the Presidential Decree from 10 August 1998 No. 861 “On creating a Danube Biosphere Reserve” and the prospects for building a shipping route between the Danube and the Black Sea, be declared illegal.[12]

These amendments were initiated by the Ministry of Transport which for a long time, despite the protests of scientists and the public, has been lobbying the construction plan for a shipping canal “Danube – Black Sea” through the zone of the biosphere reserve. In the opinion of the claimant, Point 3 of the Decree which is in dispute was adopted with violations of procedure established by legislation for changing borders, categories and for abolishing the status of territory and objects of the natural reserve fund, and it violates the rights and interests of citizens.

Skrylnikov argued that he had the right to appeal to the court because the above-mentioned Decree violated the right of exclusive ownership of the people of Ukraine (and his right as a Ukrainian citizen) to the land, its mineral wealth, its airspace, water and other natural resources, and its continental shelf and exclusive (sea) economic zone, as well as the right to the territory of its nature reserves, reserve zones of natural biosphere reserves, the land and other natural resources forming part of national parks.

  The claimant also stated that with his law suit he was defending his legitimate interest in the protection and preservation of nature reserves and nature itself as the first principle of his life and of the life of society which was being violated by the Presidential Decree.

  The court, having ignored the issue of compliance with legislation in the passing of the Decree, dismissed the claim, stating that “in view of the nature of the amendments introduced to the Presidential Decree from 10 August 1998, the court does not consider that the borders, category or status of the Danube Biosphere Reserve were in any way changed” and does not perceive any violation of the rights, freedoms or interests of the claimant in the passing of this Decree.  Mr Skrylnikov  has appealed this ruling in the Appeal Court.

The Constitutional Court of Ukraine in its ruling from 1 December 2004 stated that the concept “interests protected by the law” which is used in logical and sense-related connection with the concept of “the law”, must be understood as the wish to make use of specific material and / or non-material goods. These are conditional upon the general content of objective and not directly mediated subjective law with the simple legitimate permission which is the independent object of court defence and other means of legal protection which are aimed at meeting individual and collective needs which do not run counter to the Constitution, the laws of Ukraine, public interest, justice, honesty, reason and other general law principles.

In the context of what has been said above, one must consider as extremely important the regulation of the new Civil Code of Ukraine according to which any activity of individuals and legal entities which lead to the destruction,  spoiling or pollution of the environment is illegal. Each individual has the right to demand that such activity be stopped. The activity of individuals and legal entities which causes damage to the environment may be suspended by court ruling. That is, in the given case, there is no demand that the given activity violates the rights of a specific individual.  All individuals, whether or not they are directly concerned, have an interest in preserving the environment, and therefore, the right to call for the suspension of such activity.

  It should however be mentioned that court cases on such claims are exceedingly complicated, both due to the difficulty of gathering proof, finding experts who would take the public’s side, and because it is hard to prove the causal link between the unlawful actions and the damage inflicted to the environment

  Unfortunately, the experience of the residents of Kryvy Rig who lodged claims to industrial enterprises about the damage caused their health through pollution of the environment was also negative, with the local courts closing the cases as unproven. Complicated procedure for running court cases, as a rule, with the court considerations being long and drawn-out, deter citizens from applying to the courts on issues connected with violations of environmental protection legislation.

  Some hope for positive movement in the area of access to the courts appeared with the entry into force on 1 September 2005 of a new procedural code – the Code of Administrative Justice of Ukraine (hereafter CAJU) which is aimed at protecting the rights of individuals and physical entities in the area of public-legal relations from violations on the part of those holding positions of authority.

The new code, while not providing accelerated procedure for reviewing cases, as demanded by the Aarhus Convention, does consolidate other positive aspects. For example, the burden of proof in the case of a law suit brought by an individual or legal entity against those in positions of authority is on the respondent who must show that their actions (for example, in refusing to provide information) were lawful.

In addition, the Code of Administrative Justice allows claimants, whether individuals or legal entities, to lodge court suits where they are registered as resident, and not at the place where the respondent (the holder of a position of authority) is located. This undoubtedly improves the quality of access to justice from the economic point of view.

Moreover the court fees for CAJU is fixed and universal for both individuals and legal entities, constituting 3 UH 40 kopecks, which can be considered the minimum rate for consideration of the case in accordance with the demands of the Convention since payment for expenses on the information and technical back-up for the court case are not set down in the CAJU rules.

In autumn 2005 an application lodged by EPL was considered by the court according to the rules of administrative justice. It called for the actions of the Sanitation and Epidemiological Station (SES) of the Yavorivsky District of the Lviv Region to be declared illegal and the infringed right to information to be reinstated. EPL was appealing against the refusal of the SES to provide information about the level of compliance with rules during the storage of waste products at one of the enterprises under their supervision. During the consideration of the case, the court came to the conclusion that the response provided by the SES could not be considered an answer to the question put, and therefore allowed EPL’s claim. In its ruling it bound the respondent to provide EPL with the requested information in full within a one-month period.

The real state of affairs at the present time shows that there is no special, accelerated and cheaper procedure for considering such cases in Ukraine. Civil suits aimed at reinstating the infringed right to information are reviewed in general procedure and are payable like other non-property suits.

It is important that access to justice, in accordance with the Aarhus Convention, although applied first and foremost to demands regarding access to information and participation in the decision-making process, can be extended to other issues. For example, the provisions on access to justice are applied to members of the public demanding a review of rulings passed in violation of domestic environmental legislation.[13]

The Convention calls for members of the public, if they meet the criteria established by any legislation which may exist, to have access to administrative or court procedures for appealing against the actions and / or omissions of private individuals or state bodies which violate legislation concerning the environment.

The experience gained by other countries shows that the courts deem any individual to have an interest in protecting the environment based on the constitutional right to an environment which is safe for life and health, as well as the duty to defend this right[14]  In view of this, Ukraine needs to develop and consolidate the practice of court consideration of cases arising out of civic suits aimed at defending the legitimate interest of citizens in preserving the environment.

The Aarhus Convention gives NGOs much wider legal capabilities than those allowed for by Ukrainian legislation. For example, any NGO is recognized as being the “concerned public” in a case regardless of whether any particular rights of the specific NGO or of its members were violated, on condition that the NGO fulfils the following requirements:

–  it must be recognized as being an NGO in compliance with national legislation;

–  one of its aims must be the protection of the environment, for example, in its charter there should be a provision stating that one of the objectives for the organization’s activities is to protect the natural environment[15]

Using these provisions of the Convention, at the end of 2005 EPL lodged a civil suit to have the conclusion of the state environmental expert study on a revised plan for the construction of the Tashlyk Hydro-accumulating Nuclear Power Plant declared invalid.  The given conclusion does not directly impinge upon the rights and legitimate interests of EPL and its members however the NGO considers that it was produced with an enormous number of infringements of legislation on environmental protection.  The claim was accepted for consideration by the Economic Court of the Lviv Region.

Another commitment which Ukraine has taken on in the area of ensuring access to justice is to create mechanisms for providing help to eliminate or weaken the financial or other factors standing in the way of access to justice.  On the basis of specifically this provision, in March 2005 the state deputies V. Olujko and V. Novak tabled a draft law in the Verkhovna Rada on introducing appendices to Article 4 of the Decree of the Cabinet of Ministers of Ukraine “On State Customs and Excise” (regarding citizens’ access to justice on issues that affect the environment).  The Verkhovna Rada was asked to consider the possibility of waiving payment of state duty on civil suits demanding compensation for damage caused to citizens’ health and property as the result of negative impact on the natural environment[16].  The authors of this document are aiming to increase the number of relevant civil suits which at present is exceptionally small despite the huge number of violations of legislation on environmental protection. Unfortunately, the draft law has not yet been placed on the parliamentary agenda. 

 

5. Recommendations

1  To increase the control functions of state bodies in the area of protection of the environment, including significantly increasing the level of administrative liability for offences in the area of environmental protection.  To support environmental safety;

2.  To prepare institutional and organizational mechanisms for involving members of the public in decision-making on issues which concern the environment both at the level of state executive bodies, and of bodies of local self-government, and the broadening of positive experience;

3  To ensure that members of the public are informed on a broad and systematic basic about the state of the environment, about the activities of state bodies and bodies of local self-government, and about decision-making which will have an impact on the environment;

4  To make it mandatory to publicly announce Statements on the environmental consequences of activities in advance of environmental expert studies, to involve the public and to take public opinion into consideration in the conclusion of environmental expert studies, and to make it impossible to refuse access to EIA materials and other documentation submitted for the environmental expert study. 

 

.

Appendix 1

Statistical information on the number of individuals convicted of environmental crimes in 2005[17]

 

 

Article of the Criminal Code of Ukraine

Type of crime

 

Number of convictions

part. 1

p 2

p. 3

p. 4

p. 5

p. 6

 

 

1

2

3

4

5

6

Crimes under the 2001 Criminal Code of Ukraine

236

Infringement of environmental safety regulations

0

0

0

0

0

0

237

Measures not taken to eliminate the consequences of environmental pollution 

 

0

0

0

0

0

0

238

The concealment or distortion of information regarding the environmental condition or about illnesses among the population

0

0

0

0

0

0

239

Pollution or damage to soil 

2

1

0

0

0

0

240

Infringements of regulations on protecting natural minerals

122

1

0

0

0

0

241

Air pollution

0

0

0

0

0

0

242

Infringements of regulations on protecting water resources

0

0

0

0

0

0

243

Pollution of the sea

0

0

0

0

0

0

244

Infringements of legislation on Ukraine’s continental shelf

0

0

0

0

0

0

245

Destruction or damage to forest areas

1

0

0

0

0

0

246

Illegal forest felling

307

0

0

0

0

0

247

Infringements of legislation on protecting flora

0

0

0

0

0

0

248

Illegal hunting

16

15

0

0

0

0

249

Illegal fishing, poaching of wild animals or other water-related poaching business

276

40

0

0

0

0

250

Carrying out controlled explosions in violation of regulations for protecting fish reserves

0

0

0

0

0

0

251

Violation of veterinary norms

0

0

0

0

0

0

252

The deliberate destruction or damaging of territory under state protection, and of parts of the Nature Reserve Fund

2

0

0

0

0

0

253

Planning or exploitation of constructions with systems for protecting the environment

0

0

0

0

0

0

254

Wasteful exploitation of  land

2

0

0

0

0

0

261

Attack on places where there are things presenting particular hazard to the surrounding environment

0

0

0

0

0

0

265

Illegal handling of radioactive material

9

0

0

0

0

0

266

Threatening to steal or use radioactive material

0

0

0

0

0

0

274

Infringements of regulations on nuclear and radiation safety

0

0

0

0

0

0

326

Infringements of regulations on handling microbiological or other biological agents or toxins

0

0

0

0

0

0

327

Preparing, remaking or selling food items or other productions which have been contaminated by radiation

0

0

0

0

0

0

414

Infringements of regulations on handling weapons, as well as substances and items presenting particular hazard to the surrounding environment

2

1

3

0

0

0

439

The use of weapons of mass destruction

0

0

0

0

0

0

440

Preparation, production, procurement, storage, sale and transportation of weapons of mass destruction

0

0

0

0

0

0

441

Ecocide

0

0

0

0

0

0

Crimes under the 1960 Criminal Code of Ukraine

228-3

Stealing radioactive material

1

0

0

0

0

 

 

 



[1]  Considered by the Panel of the Accounting Chamber on 6 December 2005.  More detail can be found on the Internet website:  http://ac-rada.gov.ua

 

[2]  Letter in response to a formal request for information No. 2641 -к/19/3-12/с-162 from 21 March 2006 signed by the Deputy Minister, A. Hrytsenko. The Ukrainian original can be seen on the “Maidan” website: http://maidan.org.ua/static/news/1143548125.html.

[3]  The Preamble to the Convention on access to information, public participation in decision-making and access to justice in environmental matters (the Aarhus Convention, 1998)

[4]  The Law of Ukraine “On ratifying the Convention on access to information, public participation in decision-making and access to justice in environmental matters” from 6 July 1999 No. № 832-XIV //  No. 34 – p. 296

[5]  Official Herald of Ukraine – 2004 – No. 6 – p. 358

[6]  See on the Internet: http://menr.gov.ua/index.php?menu_id=7

[7]  Explanatory note to the draft of the Resolution “On holding parliamentary hearings “On the situation and steps for improving public access to environmental information, public participation in decision-making and access to justice in environmental matters within the context of Ukraine’s European  integration”.  Available in Ukraine on the parliamentary website http://rada.gov.ua:8080/pls/zweb/webproc4_1?id=&pf3511=24564

[8]  More details available at: http://ecopravo.kiev.ua/BEY/index_ua.php

[9]  More details can be found at http://epl.org.ua/news_novyny_arch.htm.

[10]  More information at: http://unece.org/env/pp

[11]  More information available on the Internet at: http://epl.org.ua/a_spv_Av_Lviv-Krakivets.htm.

[12]  See the Internet at: http://epl.org.ua/a_spv_Dunaj_k.htm.

[13]  On implementing the Aarhus Convention – UN, New York – Geneva, 2000

[14]  Implementing the Aarhus Convention: A User Guide for Officials in Ukraine. – Kyiv, 2004, p. 103

[15]  Implementing the Aarhus Convention: A User Guide for Civil Society in Ukraine – Kyiv, 2004. – p. 30

[16]  The draft law is available (in Ukrainian) on the Internet at: http://rada.gov.ua:8080/pls/zweb/webproc4_1?id=&pf3511=23792.

[17]  Statistics from the State Court Administration of Ukraine

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