Human rights in Ukraine 2009 – 2010. 19. Environmental rights
1. Right to safe environment
Summarized official information with respect to environmental safety in Ukraine is scarce. It can be found mainly in national reports on natural environment that should be published annually. Unfortunately, both devising and making these reports public through Internet is delayed year in and year out. Thus, as of early 2011, the reports for 2009 or 2010 haven’t been yet published by the Ministry of Environment. Naturally, the task of drawing substantiated conclusions on environmental safety in Ukraine becomes a real challenge.
Political and administrative crisis of 2009-2010 shifted the current environmental problems to the periphery of national interests. There have been no reports on environmental monitoring or environmental safety, prepared by authorized bodies, while those available were compiled on the basis of fragmentary or incomplete observations, and, therefore, tend to be superficial and formal. One can draw a logical conclusion that deep systematic monitoring of environmental safety in Ukraine is lacking.
The State Statistics Committee in its consolidated report “Ukrainian environment in 2009” stated that in 2009 technogenic load on environment somewhat decreased due to slackening in economic activity. However, the environmental conditions, as vitally necessary prerequisite of human existence, still leave much to be desired.
The pollutants’ emissions into the atmosphere by the registered fixed sources and transport decreased from 7210.3 thousand tons to 6442.9 thousand tons. However, the density of pollutants’ emissions from fixed sources per 1 square km amounted to 6.5 t., and to 85.3 kg per capita, which is much higher than respective indexes for European countries, Russia and Belarus. In some regions these indexes are much higher than mean values for the country. In particular, the scope of emissions per 1 square km exceeded the average indexes 7.5 times per 1 square km and 3.4 times per capita in Donetsk oblast’; respectively, 3.8 and 2.8 times in Dnipropetrovsk oblast’; 2.9 and 2.6 times in Luhansk oblast’; 2.4 and 1.8 times in Ivano-Frankivsk oblast’. Kiev industrial enterprises discharged 52.5 tons of pollutants per 1 square km, exceeding the mean country value eight times! The highest technogenic load was registered in Kryvy Rih, Mariupol, Burshtyn, Luhansk, Dniprodzerzhynsk. It is noteworthy that State Statistics Committee uses only the data concerning the registered sources of emissions, so that numerous negative phenomena lamentably characteristic of Ukraine, i.e. burnings of the abandoned city dumps, burning garbage and leaves in the city, vegetation remains in the fields and forest belts, burnings of waste in wood-cutting areas – remain beyond the scope of assessment.
Major discharges of waste water into the water reservoirs was registered in 2009 in Kirovohrad (share of waste water in total drainage systems constituted 57%), Odessa (45%), Dnipropetrovsk and Donetsk (43% in each oblast’), Sumy (36%) and Luhansk (33%) oblast’s, city of Sevastopol (45%). According to the data obtained by Central geophysical laboratory under the Ministry of Environment, the water reservoirs of the country are polluted mainly with the heavy metals compounds, ammoniac and nitrite nitrogen, sulphates. Significant exceeding of marginally acceptable levels of pollution was registered practically in all river basins, as well as in Kiev, Kaniv, Kremenchuh, Dniprodzerzhynsk and Dnipro water reservoirs.
According to the State Statistics Committee, as of January 1, 2010, Ukraine accumulated 20.9 million tons of hazardous waste; 35.5 thousand tons among them (0, 2% of general amount) fall under the I hazard class, and 2.3 million tons (11%) – under ІІ hazard class. Over 70% of I hazard class waste was found in land-fills of Ivan-Frankivsk and Lviv oblast’s.
On February 13, 2010 Procurator’s General Office of Ukraine, in compliance with article 2 of the Law of Ukraine “ On Procurator’s Office” submitted annual report “On law observance in the country in 2009”2 to the parliament. A relatively small section of the report addresses the issues of environmental safety and environmental balance. It is noteworthy the PGO in its reports does not tackle this problem in the context of environmental rights’ observance. The authors of the report do not even use this concept, either in the section dealing with prosecutor’s supervision over compliance with constitutional rights and freedoms of the citizens, or in the section addressing environmental protection and environmental safety. As before, the PGO information addresses the general violations, related to the use of natural resources. Quality and quantity of the data are worse, as compared to 2008 report. Practically there are no quantitative indicators that would reflect the results of prosecutor’s supervision over compliance with environmental legislation in forestry and water use industries, use of natural resources, protection of natural preserves. In its own report for 2009 PGO failed to duly address the violations in land relations, although even superficial monitoring, held by the Uniform State Registry of Court Decisions3 shows that the number of violations of land law, land relation, public and state interests in this area has been increasing all over Ukraine.
Instead the Procurator’s Office reports a common practice of non-sanctioned wood-cuttings, illegal spoilage and destruction of forests, timber thefts, violations of green technologies regulations in timber-cutting, poor control exercised by forest-protection agencies, expropriation of forested areas etc. Amazingly, the official site of most competent state forestry agency – State Committee on Forestry – has absolutely no information with regards to these phenomena. The only page, reflecting forest protection and preservation activities of State Committee, dwells on protection from pest, diseases and fires.4 Meanwhile, according to PGO information, damages to the state, perpetrated by unknown “pests” amounted to 30 million per year, and the culprits paid only 10% of them. The worst situation was observed in the forests under the Ministry of Agricultural Policy jurisdiction – only 2% of damages were compensated by the culprits, and under the Ministry of Defense jurisdiction, where this index amounted to only 1%.
On January 14, 2011 Ombudsman Nina Karpachova submitted an annual report “On observance and protection of human rights and freedoms in Ukraine”5 to the parliament. The report contained information for 2010, while the previous “annual” report dealt with events of 2006-2007. A special section – completely perfunctory and superficial, even in comparison with the same section of the previous report – dealt with the right to safe and sound environment. 6
Analysis of the first period of the new presidents’ team operation, performed in mid-2010 by independent experts, did not show any evidence of prioritization of environmental policy by ruling power. 7. In defiance of European standards, the presidential Economic Reforming Program for the years 2010 – 2014 “Affluent society, competitive economy, strong state” lacks environmental component, which has been missing at the analytical stage, at the stage of goal-setting and among the anticipated program outcomes.
The reforming program superficially declared just one intention, i.e. “to ensure the implementation of European principle, under which the worst pollutants pay the highest fines”. The mechanism of environmental taxation is to be implemented by the end of 2012, while the implementation of new system of payments for the natural resources use is postponed till the end of 2014, i.e. rather remote future.
The goals of new power with respect to environmental protection are formulated in the section three of the State Program for Economic and Social Development in Ukraine for 2010 “Safety of human life and activity”8.
Similar to Economic Reforming Program, this cumbersome and bulky document is based exclusively on the analysis of economic factors of development. Social or ecological aspects are not treated as priorities, contrary to the principles of sustainable and ecologically balanced developments. Finally, the “safety” section of the program was prepared without preliminary public discussion, required by Aarhus Convention. Such important priorities as adherence to environmental rights, free access to environmental information, environmental education and raising of public awareness, public involvement in ecologically significant decision-making were omitted.
Summing up, we can argue that such approach to strategic planning in the country with a most resource-consuming economy and the highest rate of environmental exhaustion and pollution will inevitably lead to further deepening of environmental crisis and serious developmental impediments due to misuse of the country’s natural resources.
2. Right to accessible environmental information
As noted above, the delays in preparing and publishing national reports on environmental status of Ukraine have become routine. As of late 2010, official portal of the Ministry of Environment offered only the text of 2007 National report, as well as the texts of regional reports for 20089.
For the umpteenth time we are trying to draw attention to the fact that for 6 years in a row the National report has not been submitted to the Verkhovna Rada for consideration or printed as a separate publication, which is a gross violation of article 25-1 of the Law “On Environmental Protection”! That is why neither senior officials nor common citizens are familiar with National report! Under the circumstances, the information contained in the report is studied exclusively by a narrow circle of specialists and public activists. Subsequently, the environmental situation in the country is not properly analyzed by the authorities and does not create incentives for considering environmental factors or threats in the planning process.
One of the major shortcomings of both national and regional reports is the neglect of legal aspects in adherence to environmental rights.
In 2009-2010 the Ministry of Environment made public quarterly analytical environmental reviews, offering the current results of environmental monitoring in specific categories, i.e. air pollution, surface water and radiation safety10. Useful as it is, this practice cannot compensate for absence of national reports.
As far as special environmental reports are concerned, the lagging behind is even more dramatic. For example, the Second national warning on climate change was devised as far back as 2005, the report on the implementation on National program for establishing national Ukrainian environmental network and report to the Second meeting of Aarhus Convention. parties – in 2004.11
The information on spending of money, allocated by State environmental protection fund and regional and local funds has been missing from the Ministry of Environment web-portal for years and still cannot be found there. In our opinion, this practice is quite contrary to publicity and transparency principles of Ukrainian budget system, stipulated by the Constitution and Budget Code. Doubtless, the information on allocation and spending of environmental funds’ money, as well as expenditures’ analysis, used in ecological decision-making, falls under the concept of environmental information, defined in p.3, article 2 of Aarhus Convention. Therefore, the state should ensure both free access to this information and active informing of the public.
Starting 2009 the environmental protection agency proceeded to contradict its own resolutions “On informing public on largest pollutants of environment” and “On Regulations on providing quarterly public information through mass media with respect to the largest pollutants of environment”. In early 2011 the official web-portal of the Ministry still offered the information on the most polluting industries in Ukraine for 2008.12 Meanwhile, there was no information concerning steps or measures taken by the Ministry of Environment or local councils with regards to the owners of the industries, to make them stop their operation or have their companies modernized.
The situation with regional or local state administrations’ reports on environmental status and implementation of environmental protection programs is not much better. Not a single state region administration in Ukraine performs its Constitutional duty (article 119), which is to provide regular information on implementation of environmental protection programs. They delegate this function to the Ministry of Environment territorial departments.
The state administrations do not publish annual information on environmental status in their mass media, thus systematically violating provisions of article 25-1 of the Law “On Environmental Protection”. The official Internet-portals of the majority of state administrations, ARC Council of Ministers, Kiev and Sevastopol state administrations do not have any sections addressing environmental information.
Zaporizhzya oblast’ state administrations’ is one exception to this rule. It became the first to implement the provisions of the aforementioned article 25-1 of the fundamental environmental law. In February 2010 a presentation “Information systems with respect to environmental status in Zaporyzhzhya region” was made here.13 By late 2010 the systems were still in place and accessible.14
Accessibility and quality of the information offered at the Ukrainian Ministry of Environment official web-portal have been severely criticized by many non-governmental organizations. In 2010 the inadequate presentation of information at the Ministry of Environment official web-portal was for the first time recognized by the court. On August 30 Kiev Circuit administrative court passed a ruling on the IBF “Ecology –Law- Individual” suit against the Ministry of Environment with regards to its official web-page. In its claim the fund made reference to the Aarhus Convention norms demanding active dissemination of environmental information and relevant legislative provisions and functioning of official executive authorities’ web-sites.
In June 2010 the Ministry of Environment official web-portal was redesigned. As a result, it started to look more up-to-date, but the access to previous years’ information was lost. Current informational contents of the Ministry of Environment web-portal are definitely insufficient. The majority of links to the environmental normative acts of the Cabinet of Ministers of Ukraine were not active by the end of 201015. Only some of the Ministry of Environment resolutions, passed in 2009-2010, are available on the web-page.16
In early 2011 a new site of Ministry of Environment Analytical Center has been designed and now is being filled up17.
Long - awaited printing and publishing of the “Red Book of Ukraine” third edition on the Ministry of Environment site, in compliance with the Law “On Red Book of Ukraine” is a positive sign in promoting public environmental awareness.
The ecological information, collected by of sanitary/epidemiological inspection monitoring, on safe environment for human life and activity, impact of environmental factors on public health was not included into the updated site of the Ministry of Health.18
In compliance with Presidential Decree № 76 of February 4, 2003 the Ministry of Ukraine for Extraordinary Situations and Public Protection from Chornobyl disaster aftermath (MES) must prepare annual reports on technogenic and environmental safety in Ukraine. However, the updated Ministry site contains no information with respect to these reports for 2009-201019.
Under provisions of the article 9 of the Law “On Drinking Water and Water Supply” the national report concerning the quality of drinking water and water supply shall be prepared on early basis. Mass media published some information concerning the development of the 2009 report, but by January 2010 no traces of it could be found on the redesigned site of the Ministry of Regional Development, Construction and Housing and Communal Economy of Ukraine.20.
Meanwhile, at the end of 2010 the link to “Report on nuclear and radiation safety in Ukraine in 2009” appeared on the site of the agency, most accurate with regards to making information public –i.e. State Committee for Nuclear Regulation of Ukraine. This information was also published in hard copy.
In their earlier reports on environmental rights’ observance, public organizations mentioned that in early 2008 it became known that the Ministry of Environment set up its own system of classifying the environmental information by creating lists of confidential data. Inaccessibility of information in many cases (and, especially, when it is deliberately hidden) has significant impacts as an impediment in exercising public environmental rights21.
Responding to severe criticism and lawsuits the Ministry of Environment could think of nothing better than launch a real “confidentiality race”, formally invalidating illegal resolutions and passing the new ones, equally illegal.
Only on October 27, 2010 Minister M.Zlochevsky signed resolution № 481 “On amending the list of information classified as “confidential”. This resolution removed a number of items from the list of confidential information which is state property, including the most unacceptable, concerning restricted access to the outcomes of state ecological experts’ evaluation.
Doubtless, this step was the result of public campaign for banishment of the most odious resolutions of the Ministry of Environment, carried out by the National environmental center of Ukraine (NECU), IBF “Ecology –Law- Individual”, UEA “Green World”, “Bureau of environmental investigations”, Environmental NGO “MAMA-86” and others.
Nevertheless, it’s still too early to rejoice: the restricted access to the environmental information by classifying it as confidential is still very common in our ministries, committees and agencies. For example, over the recent years the State Committee on Land Relations of Ukraine also passed a number of resolutions classifying some information as confidential22. These resolutions cannot be found at the State Committee official web-portal or its territorial departments’ web-pages. A common citizen will have hard time trying to get them, even on request. Deliberate hindering of the access to the resolutions permits the State Committee bureaucrats to decline public requests on the grounds that allegedly they fall under the category of classified information. There is no way to verify this statement as the list of classified information is also very hard to get!
The activists of “Green World” environmental NGO came face to face with this practice when they were sending requests for information on various land policy, land protection and privatization issues to Ternopil oblast’ authorities. Beyond any doubt, the deliberate narrowing of the scope of accessible information by the bureaucrats is one of the major corruption factors in state management of land resources.
For a long time the State Committee of Ukraine for Forestry has been – unfortunately – ranking first in the suppressing the information. This State Committee never implemented the requirement of article 28, 35 of Forestry Code of Ukraine with regards to monitoring, state registration of forests and state forest cadastre. A special page of the State Committee contains only very basic general information on the goal of forests’ monitoring. Unfortunately, it has not been updated since 2007 23. The information on monitoring results, state registration of forests and state forest cadastre must be available to the public, but no one, lamentably, is devising it… In the meantime, all the materials concerning forests management still are classified as “confidential”24. What legal acts or norms require this secrecy, or why the information with regards to forest condition is restricted, remains unclear. So, the information is in place, somewhere, but there is no legal way to obtain it, sorry…
3. Exercising the right to participate in environmentally significant decision-making
3.1. Developing the draft “Strategy of national environmental policy till 2020”.
As far back as 2007 the Ministry of Environment started devising the Draft strategy of national environmental policy. Over two next years the Strategy of national environmental policy has been reluctantly discussed and changed several times. In 2010, however, the Ministry of Environment became more upfront in discussions with regards to the Strategy. This new interest towards the strategy of national environmental policy is explained by the fact that Ukrainian government plans to get financial support at the amount of 35 million euro from the European Union and 10 million euro from Swedish government. One of the conditions for this financial support is adoption of the Environmental Strategy by the end of 2010.
The first public hearings on draft strategy took place on June 17, 2010, but they were recognized as invalid by the public activists. The reason for that was the fact that by the time the hearings were called, the draft strategy has been sitting in the Verkhovna Rada for two weeks already. The Ministry of Environment had to call the new date for public hearing so that the public could provide its considerations. The second hearing on the draft strategy took place on August 26, 2010, and many amendments and considerations were proposed. All of them, however, were disregarded, as the parliament registered the draft strategy on the day following the hearing.
On December 21, 2010 the Verkhovna Rada passed the Law “On fundamental principles (starategy of the state environmental policy of Ukraine till 2020”25.
3.2. Devising the draft transportation strategy till 2020
In 2010 the government tried to adopt the transportation strategy of Ukraine till 2020 even in greater hurry than it adopted the environmental strategy.26 The reason for the hurry was obvious” an opportunity to obtain multi-million support from the European Union and Sweden, on the condition that the document is passed this year.
The Cabinet of Ministers of Ukraine approved the draft strategy on October 20, 2010, despite the fact that no public hearings have been called, although the strategy might have serious impact on environment and environmental NGOs were interested in it. Understandably, as the transport is the fastest growing source of toxic pollution and hot-house gases emissions. That’s why immediate implementation of measures to curb its ecologically inefficient use would be most timely. The priority should be given to energy-saving and less polluting means of transportation and to public transportation, which should be more comfortable, reliable and regular.
Considering this draft the Ukrainian government failed to take into account serious proposals submitted by public organizations and associations. In the footnote we give just one example, i.e. NUO task force proposals on climate changes in the context of draft strategy.27
3.3. Initiative to call a local environmental referendum in Zaporizhzhya.
Zaporizhzhya city and oblast’ authorities for a long time have demonstrated incapability of decisive response to the violations of environmental protection legislation, committed by metallurgy and chemical industries. That’s why the city air always contains amount of industrial toxicants, substantially exceeding marginally acceptable norms. NFOs’ activists decided to address the problem by means of local referendum, initiated at the public meetings of Zaporizhzhya residents in August 2009. The referendum was supposed to answer the following question: “Do you support the necessity of temporary closing [by Zaporizhzhya city council] of the companies, enterprises and industries, located at Zaporizhzhya territory, if they exceed the marginally acceptable norms of pollutants’ emissions and discharges into the environment ?” 28 Unfortunately, the activists never managed to lobby the referendum at the city council efficiently enough.
4. Exercising the right to access to justice on environmental issues
Certain successes achieved in lawsuits with regards to environmental protection and environmental rights are due primarily, to the active operation of environmental NGOs.
On November 25, 2009 Lviv Circuit administrative court passed a judgment, satisfying the IBF claim against State environmental protection department in Lviv oblast’.29 The court judged the actions of the department, i.e. classifying the state environmental experts’ evaluation results as “confidential information”, unlawful and cancelled the state department resolution of May 19, 2009 concerning the list of information, which can be classified as confidential. It also prohibited state department from classifying the state environmental experts’ evaluation results as “confidential information”.
On the same day Kiev commercial court, passing decision on the NECU claim, invalidated the decision of Kiev city council, which illegally cut down the area of “Zhukiv island” natural preserve from 1794 ha to 196 ha (9 times less)30. The landscape park “Zhukiv island” was established in 1999 on Dnieper river. It protects the whole area of “Koncha-Zaspa” natural preserve, the first natural preserve in the soviet Ukraine. Kiev city council decision grossly violated the law and was made without any considerations of Kiev Master plan of urban development, approval from the Ministry of Environment or Procurator’s General Office or scientific substantiation of reductions. The decision was made with one and only goal – to sell it out for construction development31.
On November 9, 2010 college of Kiev Circuit administrative court judges passed a ruling on the suit filed by IBF, appealing the Cabinet of Ministers’ of Ukraine resolution № 841 “On allotting land-plots for permanent use”. By this resolution the government allotted 27 ha of most valuable land of the regional landscape park “Granite and steppe Pobuzhzhya” in the Southern Bug valley to “Energoatom” company for the further inundation by the waters of Oleksandrivka water reservoir. “Energoatom” CEOs believed that the reservoir is needed for the Tashlytska HNPP and Southern-Ukrainian NPP operation. However, the price of inundation, - which, by the way was not stopped in defiance of court’s decision - is unique Bug rapids, buried underwater, peril of unique plants registered in the Red Book, destruction of the last historical landscapes of Zaporizhska Sich.
Joint attempts of Ternopil oblast’ prosecutor’s office and state environmental inspection to bring the culprit, guilty of breaking the natural preserve regime in one of the “natural wonders of Ukraine” – regional landscape park “Dniester canyon” to justice, resulted in defeat in the courtroom. The culprit, a private company “Zolotopotytske” illegally plowed 1.7 ha of protected land in Dniester valley. Nevertheless, on October 12, 2010 Ternopil oblast’ Commercial court passed a ruling dismissing the claim on the grounds that “plowing of the natural state park land did not lead to the destruction of the natural system and does not present a threat to the environmental condition of the park”.32
On October 21, 2010 an event, unprecedented both in the judiciary practice and natural reserves’ management, occurred. The Highest administrative court of Ukraine passed a judgment, classifying the Presidential Decree №1040/2009 of December 11, 2009 “On establishing a national park “Syversko-Donetsky” as illegal. It is first precedent of court’s ruling cancellation of national park status in total Ukrainian history. Kremin’ raion council (Luhansk oblast’) was a claimant in the case. It requested invalidation and cancellation of the Presidential Decree, and justified its actions by the fact that establishment of the park was not agreed upon with Kremin’ raion or city councils, although it is not stipulated by the law, as the park was created exclusively on the lands of forest fund, which is administered by the state.
Oddly enough, the Presidential Administration allowed the Kremin’ raion council appeal in defiance of the Presidential Decrees, which defined natural preserves’ development as one of the most important state priorities.33
5. Adherence to the international conventions on environmental protection
5.1. UN EEC on access to information, public participation in decision-making process and access to justice on environmental issues (Aarhus convention (ОК))
June 2010 У marked the 10th anniversary of Aarhus convention ratification. At that point it became a part of the Ukrainian legislation. червні 2009 року минуло 10 років від моменту ратифікації Оргуської конвенції, коли вона стала частиною національного законодавства.
As is well-known, at third Aarhus convention meeting, which took place in June 2008 in Riga, Ukraine and Turkmenistan were classified as countries that do not meet its requirements. 34 The meeting’s decision maintained that the Ukrainian government does not participate in evaluation of countries’ adherence to Convention and does nothing to implement the decisions of the second meeting. In four years the government had done nothing to comply with the Almaty meeting requirements: developing the Convention implementation strategy, harmonizing the law with its provisions, stipulating public participation in decision-making process, and devising practical tools for the Convention implementation. 35. Bodies of state power in Ukraine kept Ukrainian public happily unaware of the lamentable contents of both meetings’ decisions – not a single mass media organ made them public.
On December 27, 2008 the Cabinet of Ministers approved “Action plan for the execution of Aarhus Convention decision III/6f».36
The said plan had a number of faults, including the following:
The Ministry of Environment is a main executor of all the Plan’s activities; it means that the Aarhus convention is still perceived a professional convention of this ministry, while all the superior power structures, i.e. the Cabinet of Ministers, the President, Ombudsman, law enforcement and judiciary agencies deliberately stand aside, not taking part in its implementation;
The interdepartmental task force for the implementation of Aarhus Convention decision ( nota bene, we are not talking about the whole convention, but just about the latest decision, made by the convention parties an their last meeting!), is not supposed to include the members of public, local self-governments, higher authorities, law enforcement agencies.
The interdepartmental task force should monitor not only the decision, made by the Aarhus convention parties, but a much broader range of issues, related to its implementation in Ukraine. Evidently, by ratifying the convention, Ukraine had undertaken the obligations, first and foremost, with regards to its citizens, and not only with regards to Aarhus convention parties. That’s why the task force should be called “The interdepartmental task force for the Aarhus convention provisions’ implementation in Ukraine”. Its terms of reference should be clearly defined. One of the vice-prime ministers shall be conferred with the authority to act as the head of the task force.
Under the action plan, the Ministry of Environment promised to devise a number of amendments to the legislation, reflecting the Aarhus convention provisions’ implementation by September 2009. Obviously, these promises were never fulfilled, and the Ministry of Environment referred to the complexity of the task, need for expert help and complicated political situation in the country as reasons for its failure.37 Next year, reporting on the drafting of legislative acts, the Ministry of Environment and the government failed even to provide the required documents concerning adherence to Aarhus Convention to UN EUC, so that this latter had no way of comparing these documents with Convention provisions or of evaluating their adequacy and efficiency in resolving the problems, identified by the Committee in its suit against Ukraine as far back as 2005.38.
In 2009-2010 the aforementioned interdepartmental task force had never been set up. The fundamental law “On Environmental Protection” had never been amended with new provisions in compliance with the Convention standards. No key governmental documents, promised for the last ten years, (e.g. resolutions “On public involvement in decision-making with regards to the natural environment”, “On publishing information concerning the natural environment status) had been adopted.
The resolution on accessibility of environmental information should contain a provision, stipulating setting up of regional centers of environmental information under the auspices of central and regional executive bodies ( government, oblast’ and raion administrations). Currently only an insignificant portion of the environmental information is collected in various department of the Ministry of Environment. In practical operation all the other agencies and departments (the Ministry of Health, the Ministry of Agricultural Policy, the Ministry of Extraordinary Situations, the Ministry of Fuel and Energy, the Ministry of Forestry et al.) deliberately stand aside, not participating in environmental monitoring, collection of environmental information, its systematizing, structuring, and making it public and accessible for the citizens. The responsibility for this, according to the law and to Aarhus Convention, resides with the government and the parliament.
More than once public activists have criticized the inaction of power, that practically withdrew from Aarhus Convention provisions’ implementation. First, the measures, spelled out by the government in the Action Plan, are inadequate and inappropriate, and therefore, failing to meet the recommendations of the Committee on Aarhus Convention provisions’ implementation ІІІ/6f. Second, even these partial measures are not a priority for the ruling power, and therefore are not properly addressed.39.
Meanwhile, the next Aarhus Convention meeting is approaching. Despite the fact that nothing has been done, Ukraine has to report to the world community. So, on October 29, 2010 the Ministry of Environment published on its web-portal a draft “Joint National Report for 2010 on Aarhus Convention implementation in Ukraine”40. The Ministry once again encouraged public at large to send recommendations and remarks on this report to the mail-boxes of the Communications and Public Relations Division of the Ministry of Environment. The results of discussion were to be made public in November 2010, but by early January 2011 neither discussion results not final version of “Joint National Report for 2010 on Aarhus Convention implementation in Ukraine”41 have been published by the ministry.
It is noteworthy that there was no mention of this report on the sites either of the Cabinet of Ministers, the Verkhovna Rada or the Ministry of Justice, who all share the responsibility for the implementation of international legal acts. The only conclusion which can be drawn from it is that the document in question can by no means be called a National report. It is not a report, prepared by the highest authorities in the country, it is not drafted in the national language, it has not been submitted to the parliament that ratified the convention, Ukraine public is not aware of it, although it has the right to know about the power’s adherence to the principles of “environmental democracy”. It is nothing but a ungainly attempt, undertaken by the Ministry of Environment to “imitate” a national report.
So, nothing has changed over the 10 wasted years, since the ratification of Aarhus Convention. The Ukrainian government resembles the Andersen’s “naked king”, failing to demonstrate either political will or tangible outcomes of the Convention provisions’ implementation into the law and state policy. Instead, the Ministry of Environment has embraced in this farce a lamentable role of the “king’s page”, whose only task is to cover the actual absence of implementation process with its clumsy reports and action plans. Obviously, the king remains as naked as the day he was born.
5.2. Framework UN Convention on Climate Change
NGOs’ standpoint with respect to Ukrainian position in UN negotiations on climate change in Cancun (Mexico)
The NGOs’ proposals with respect to Ukrainian position in UN negotiations on climate change, which took place in Cancun in December 2010 are permanently neglected by Ukrainian government. The main goal of the negotiations consisted in seeking international agreement on emissions reduction till 2020.
Ukrainian government for the umpteenth time expressed its readiness to decrease the emissions of hot-house gases into the atmosphere by 20% as opposed to 1990 level. The environmental NGOs have been sending out declarations and appeals and organizing public actions, trying to convince the authorities that their promises can only mislead the international community, as Ukrainian emissions currently constitute only 55% of 1990 level. In other words, this “obligation” does not oblige Ukraine to reduce the emissions, but, quite contrary, allows for their increase by 70%/ The environmental NGOs believe that by 2020 emission levels in Ukraine should not at least exceed actual levels.42
6. The most outrageous violations of environmental rights
6.1. Ternopil “landfill crisis”Тернопільська «сміттєва криза»
Malashyvtsy landfill officially does not exist: it was closed for use by the State environmental protection department in 1997. In real life, however, the land plot within the jurisdiction of Malashyvtsy village council (Zboriv raion) for 30 years has been used by Ternopil utility companies as a dump for domestic waste. The dump is located within the second zone on sanitary protection of Verkhnyo-Ivachiv water catchment area, which supplies Ternopil water. The geological stratum is formed by the rock which cannot serve as watertight screen. Hence, there is danger of pollutants’ penetrating from the landfill into the productive aquifer.
In 2009-2010 the village several times launched protests, blocking the road to the landfill. As a result, the sanitary conditions in Ternopil in July-August 2009 became unbearable: the garbage was left in the streets, or taken to the non-sanctioned dumps in the suburbs. Only small portion of the waste was brought to the landfills in the neighboring raions and oblast’s. The city and oblast’ authorities failed to find legal means of resolving the dispute with the Malashyvtsy community and addressing the issue of domestic waste management.
Finally the executive committee of Ternopil city council filed a claim with the Ternopil Circuit administrative court, asking the court to ban Malashyvtsy activists from organizing mass events with the goal of blocking the roads to Malashyvtsy landfill starting August 1, 200943.
The court failed to protect the residents’ environmental rights. On August 7, 2009 it passed the decision satisfying the appeal and prohibiting the Malashyvtsy activists from organizing mass blockage of all the roads leading to Malashyvtsy landfill, (Zboriv raion, Ternopil oblast’) starting August 8, 2009. The court’s judgment, in compliance with p.6, article 182 of Administrative Code of Ukraine, has been executed by militia units in August-September 2009.
Over 2010, Malashyvtsy residents many a time attempted to block the waste removal from Ternopil, but all their efforts were in vain.44. The residents of the village of Myrolyubivka, Ternopil oblast’ also organized mass protests on learning that an alternative landfill was to be constructed in their territory without village council authorization.
Currently Malashyvtsy landfill is still being used in violation of environmental safety and sanitary norms.
6.2. Granting city of Kalush and surrounding villages the status of environmental disaster zones
Environmental problems Kalush is facing now are predetermined by large-scale aftermath of prolonged inefficient extraction of potassium ores and production chlorine organic compunds. They are in general typical of many mining and industrial cities of Ukraine.
The most serious hazard is created by more and more frequent collapses of surface over the mining fields. Presently 256 residential houses and industrial facilities in Kalush, 109 residential houses in the Khotyn’ village, 285 residential houses and 7 industrial facilities in Kropyvnyk village, 304 residential houses and 16 industrial facilities in Sivka-Kaluska village are located on the duffers. 15 surface depressions appeared in the city over the recent years.
Industrial waste presents another serious challenge. The dam can collapse any moment at the sites of potassium waste storages. Dombrovsky potassium quarry 54 million m3 large is another reason for concern. In fact, it is completely abandoned and inundated by water from melted snow and rain, which react with salt. The threat of quarry’s collapse and inundation by Sivka river is imminent.
A toxic waste landfill issue should be addressed immediately: one third of toxic waste of Ukraine is buried here, and no one knows what is going on with it. Potentially hazardous waste should wither be disposed of or at least stored safely45.
Ensuring Kalush the status of extraordinary environmental zone can serve as a vivid example of successful lobbying of environmental rights’ protection by the public and authorities acting together.
In late 2009 public task forces charged with referendum preparation were registered in Kalush in compliance with the law “On all-Ukrainian and local referenda”. The referendum initiative was unanimously backed up by cite council and mayor – people’s deputy I.Nasalyk. At the referendum of January 17, 2010, 97% of all Kalush residents that took part in the voting, answered the question “Do you believe that Kalush area is the extraordinary environmental situation zone?” in affirmative. On February 2 during a working visit to Ivano-Frankivsk oblast’, President Yushchenkpo visited environmentally hazardous areas of Kalush, i.e. Dompbrovsky quarry and “Oriana” company toxic waste storage.
As soon as February 10, 2009 the President signed Decree № 145/2010 “On granitng the areas of Kalush, Kropyvnyk and Sivka-Kaluska, Kalush raion, Ivano-Frankivsk obalst’ the status of extraordinary environmental situation zone”. On February 12 the draft law on approving the presidential decree was supported by the Supreme Rada . The costs for overcoming the extraordinary environmental situation at the amount of 560 million UAH were included into the budget. The funding of environmental and social measures starts in early 2010.
Meanwhile, on November 13 a vessel with 1.5 thousand tons of hexachlorbenzol on board left Mykolayiv port. Hexachlorbenzol is a class 1 toxic substance, which has been stored for 30 years in the abandoned landfill of extremely hazardous waste from the former “Khlorvinil” LTD company. Altogether 11 thousand tons of hexachlorbenzol are buried under the city of Kalush.46 The waste will be detoxified at the specialized facility Tradebe in Great Britain, obviously, at the expense of the Ukrainian taxpayers, and not the ill-famed “Khlorvinil”. By the end of 2010 the total of 8.5 thousand tons of hexachlorbenzol is to be removed from Kalush.47
In the meantime, the largest active companies in Kalush “Karpatnaftokhim” and “LUKOR”, that in due time appropriated “Khlorvinil” and “Oriana” assets, express no desire to participate in the elimination of the extraordinary environmental situation. On the other hand, the liabilities, left by chemical industry monsters in the past, will scare local residents and cause headache for authorities’ for many years to come.48
6.3.Suppression of public protests against wood-cutting in Kharkiv Gorky park
The confrontation was caused by illegal felling of one-hundred years’ old oaks in Gorky central park. This park area survived even the war and Nazi occupation of Kharkiv in 1941–1943. The goal of felling was to build a highway through the park, linking Sumska and Novhorodska streets49.
Decision on allotting the land plot (9.9218 ha) “for the construction of a highway, hotel complex and apartments” was made by Kharkiv city council as far back as February 27, 2008. Then the trees were saved. But on May 19 of this year, disregarding public opinion, Kharkiv city executive committee passed the decision “On removing greenery in the highway “Sumska-Novhorodska” construction site ( near Bila Akatsyia street) in Kharkiv”, authorizing felling of 503 trees. On May 20 the felling started. It turned out, that, in lieu of the whole package of documents, required for tree-cutting, the “loggers” had nothing but this decision. The exact site for cutting was not identified, safety rules were ignored. On the first day, over 100 trees were cut. “Pechenegues” environmental NGO activists called militia officials, who stopped the cutting to check whether it was sanctioned. The “Pechenegues” started to protest, set up a small tent town, where the tree defenders gathered. Students, undergraduates, teachers, retirees, office employees took turns guarding the trees in “City fort” – that was the name given by the protestors to their camp. In total several thousand Kharkiv residents participated in the action, with several dozens to several hundreds people present in every given moment. Confrontation lasted from May 20 to June 2.
On May 21, at 4:00 am, militia, using force, tried to disperse the tree defenders, so that they would not hinder the cutting. However, the protesters did not give up. They were protecting trees with their own bodies, getting into the way of machinery. The mount climbers got to the very top of the trees to prevent their cutting.
The tree defenders cut short all the efforts to politicize their actions, removing the representatives of all political forces with their logos. The only acceptable accessories were green arm-bands and the National Flag of Ukraine. Members of oblast’ and city councils from various political parties were present at the “Fort” as private persons. The rumors, spread by the acting mayor G.Kernes and governor M.Dobkin, claiming that the action was funded by the head of local BYUT, former governor A.Avakov, were false. People with various political affiliations, including those who voted for the Party of regions in 2006 and for V.Yanukovich in presidential elections, participated in the action.
Kharkiv residents’ attempts to protect the trees were violently suppressed by the “loggers’ and unknown “municipal guards” – heavily built men in black uniforms, bearing the “municipal guard” badges. These people had no IDs, but some were recognized as the personal guards of acting mayor G.Kernes. The law enforcement officers calmly stood aside, observing the protesters’ beatings. Several people ended up in the hospital with broken ribs, concussions etc.
The destruction of the green zone was unlawful. Kharkiv city council disregarded the requirements of the law “On area planning and developing”, which spells out in detail the procedure for approval of development projects with mandatory public hearings. (articles 30.2–30.7). As eventually turned out, no permits from the Ministry of Environment or other organizations were obtained.
As of early 2008, the Master Plan of Kharkiv Development did not mention this highway. Construction of another highway, going around the old part of the park and children’s railroad was planned. Later, though, the graphic portion of the Master Plane was classified as confidential information by the city council, which made any public hearings with regards to area development and trees cutting virtually impossible.
Over May 20–27 over 500 trees were cut, and 200 more trees marked for cutting. On the morning of May 28, around 6:00 am, “municipal guards” in black uniforms attacked the “Green Fort” camp and by force removed the activists from the site. Nine activists, who refused to be moved, were arrested by militia. On June 1, at 4:00 am the camp suffered a new attack. Deputy Head of Dzerhinsky district militia department ordered militiamen to form a line around the camp to prevent fighting. He was disciplinary penalized and his actions were classified as “professionally inadequate”, although he acted in total compliance with the law and according to the circumstances. On June 2 people, wearing no badges this time, attacked the camp, while militia did nothing but arrested four tree defenders. The “loggers” were threatening people with their chainsaws and cut a tree with the mountain climber on top. This latter miraculously survived by hiding behind the trunk.
The ‘loggers’ cut down all the trees and the protesters removed the camp – everything was destroyed. On cleaning up, people moved on foot to oblast’ council and oblast’ administration buildings at Sumska street. There oblast’ council member A.Avakov wanted to meet them as his constituents, but was prevented from doing it. Two more activists were detained by militia on the charge of “organizing non-sanctioned rally”.
The protocols of administrative offense under article 185 of the Administrative Code of Ukraine (malicious resistance to militia requests) were compiled with regards to all the activists, detained on May 28 and June 2, although none of them put up any resistance. Two of them –Denis Chernega and Andriy Yevarnitsky – were put in administrative custody for 15 days, another – for three days, four were exempt from liability and others were fined for 140 to 300 UAH. “Amnesty International” proclaimed Chernega and Yevarnitsky prisoners of conscience on the 9th day of their custody. On the same day they were released by appellation court decision.
In June and July the tree defenders, united into “Green Front” NGO, carried out a number of protests against illegal actions of local authorities.
On June 19 a public hearing to decide the further destiny of the trees was held in Kharkiv. The local authorities faked the outcomes of this event. Several thousand citizens gathered at the entrance to Kiev district executive committee to participate in the hearings, but were banned from entering the building. Participants were registered at one venue (2341 persons), while many of them were issued the mandate for quite a different venue. These people were easy to identify – they did not have the hearings’ agenda; many were totally unaware of the topic under discussion. Mainly they were school and kindergartens’ employees, medical workers, threatened by dismissal if they would not come to the hearing and vote for “right” decision. According to “Pechenegs”’ press-secretary O.Perehon, “the ballots of those who voted against the tree-cutting, were completely disregarded. No one counted the ballots properly. Out of 300 participants about 20 voted against tree-cutting, but they were all counted as one vote”. Sociological phone surveys, showed that 70% of Kharkiv residents were against the highway construction through the park, 15% were for it, and 15% did not care either way.
In August 2010 an Ombudsman submitted to Procurator’s General Office a motion, which described the facts of gross violations of human right to safe and healthy environment, hindering of journalists professional operation and inappropriate use of budget funds. Unfortunately, no culprits were penalized pursuant to this motion. The Ukrainian Ombudsman report “On observance and protection of human rights and freedoms in Ukraine”for 2010 the actions of Kharkiv authorities and militia were judged negatively: “The Ombudsman is obliged to declare: Kharkiv authorities used bulldozers not only on the ill-famed highway, but also on human rights. Nothing like this could happen in a civilized law-abiding state”50.
6.4. Unlawful invalidation of natural preserve “Roztochchya” legal status51
On November 1, 2010 the minister of education D.Tabachnyk signed an order № 103252, invalidating the legal status of “Roztochchya” natural preserve and launching the process of its administration liquidation (article on of the Order “Terminate the legal entity “Roztochchya” natural preserve under the National Forestry University of Ukraine by reorganizing it into a structural division of the said University”). This order is a vivid example of legal nihilism. The very first article is incorrect from the legal point of view. First of all, the preserve was never set up under the premises of the National Forestry University of Ukraine, which is nothing but its research custodian. The order provision are in plain contradiction with article 5 of the law “On natural preserves fund of Ukraine”, under which “natural preserves, biosphere preserves, national natural parks, botanical gardens, dendrology parks, zoos of nationwide jurisdiction as well as regional landscape parks are legal entities”.
The order violates the provisions of article 12 of the said law: “The management of natural preserves, biosphere preserves, national natural parks, botanical gardens, dendrology parks, zoos of nationwide jurisdiction as well as regional landscape parks is exercised by their special administrations”. Meanwhile, the order launched the process of terminating the special administration of “Roztochchya”.
Signing his odious order minister D.Tabachnik unacceptably exceeded his competences, having delegated the administrative functions in environmental protection area and permanent use of the natural preserve to a higher educational establishment, which is contrary to both Ukrainian law and University by-laws.53 The termination of status for the natural preserve means it illegal liquidation. The procedure for setting up and liquidation of natural protected areas is established by the law, and the outlandish procedure, invented by the minister of education to liquidate a natural preserve, obviously is unacceptable.
Over December and January the environmental organizations – NECU, UEA “Green World”, “Pechenegs” and others – carried out a campaign of appeals to the President, Prime-Minister and the Ministry of Environment with request to repeal the illegal order issued by the Ministry of Education.54 However, the last full stop in the case was put by “Kiev environmental/cultural center” and “ECOPRAVO-Kiev” NGOs, that filed a claim requesting invalidation of the said ministerial order with Kiev Circuit administrative court. .
On January13, 2011 the court invalidated the part of the Minister Tabachnik’s order addressing the termination of “Roztochchya” natural preserve legal entity. On the same day the deputy Minister of Education B.Zhebrovsky cancelled his boss’s order as “non-implemented in due time”.55
7. Conclusions and recommendations
1). The President should issue a Decree “On urgent measures for increasing the priority of environmental policy” which establishes that environmental policy is one of the main priorities of Ukraine’s State policy, and give the relevant instructions to the Government on drawing up a draft long-term Strategy of national environmental policy;
2) The Cabinet of Ministers should draw up a draft Strategy for integrating the provisions of the Aarhus Convention into national legislation, together with preparation of the relevant timeframes, practical mechanisms and procedure for bringing into force implementing legislation;
3) The Cabinet of Ministers should include members of the public, bodies of local self-government, higher echelons of power and the law enforcement structures in a working group on implementing the statements of the Aarhus Convention in Ukraine.
4) The Cabinet of Ministers, the Ministry of Justice and the Ministry for Environmental Protection should speed up preparation of draft laws “On protection of the natural environment”, “On environmental assessments”. “On ratification of an amendment to the text of the Aarhus Convention regarding public access to information regarding the release of genetically modified organisms”, etc.
5) The Ministry for Environmental Protection should prepare, present for review by the Verkhovna Rada and publish “National Reports on the state of the environment in Ukraine” for 2008-2010;
6) The Cabinet of Ministers should pass Resolutions on access to environmental information and public participation in decision-making on environmental matters, that are corresponded to the international standards, in particular, Aarhus Convention;
7). The Verkhovna Rada of Ukraine, the Cabinet of Ministers and the Human Rights Ombudsperson should control issues concerned producing and publishing national and special reports on status of environment in Ukraine, prepare in such reports a section on environmental rights observation.
8) To finalize Concept of Education for Sustainable Development, to hold a public discussion on this Concept, and to approve it by government’s Resolution to the end of 2011. Government should to create a Strategy and National Action Plan for the Development of Education for Sustainable Development on the base of the Concept.
1 Prepared by Oleksandr Stepanenko, board member of UHUHR, executive director of Environmental NGO «Green World», Head of the NGO «Helsinki initiative –XXI».
21 The Ministry of Environment orders №361 of September19, 2002 «On validating the list of confidential information», №470 of November 25, 2004 «On validating the list of confidential information», №158 of April 03, 2006 «On amending the Ministry of Environment order of November 25, 200 №470» №540 of December 12., 2005 р., №159 of March 28, 2008 « on approving the list of confidential information» № 231 «On adjusting and systematizing the confidential information data» which annulled the order №159; order №289 of June 09, 2008 «On approving the list of information marked as «confidential».
22 State Committee for Land Use and Resources № 633 of December 04, 2009 «On approving the list of confidential information which is state property within the framework of State Committee for Land Use and Resources”; order of the State Committee for Land Use and Resources № 359 of May 11, 2010 «On amending the list of confidential information, which is state property» and this information marked as «for service use only».
24 Response provided by the director of Ternopil olbast’ department for forestry and hunting grounds№ 02-2/902 of December 15, 2010 to «Green World» environmental NGO.
28 Zaprorizhzhya: shall environmental referendum happen? - http://khpg.org.ua/index.php?id=1266324184
30 Kiev city council decision №162/1996 August 22, 2007 «On setting up the «Zhukin island» landscape park».
32 Commercial court of Ternopil oblast’ case № 2/70-1162.
35 Decision 2/5b «Observance of the Ukraine’s obligations undertaken at the II meeting of Aarhus Convention parties, Almaty, May, 27.05.05 г. .
36 CMU resolution of December 27, 2008 р. № 1628- р.
37 Report on the implementation of Aarhus Convention meeting decision III/6f , p. 7 http://menr.gov.ua/content/article/id/31
45 Regional report on natural environmental status in Ivano-Frankivsk oblast’ for 2008 –
46 Kalush wants to be a natural disaster zone –
47 The Ministry of Environment news – http://menr.gov.ua/content/article/6865
49 «Awarding the culprits and punishing the innocents?-» Yevhen Zakharov, co-chair of Kharkiv Human Rights Protection Group. Dzerkalo tyzhnya № 26 (806) 10 — July 16, 2010 http://dt.ua/3000/3320/70028/
51 Natural preserve «Roztochchya» with total area of 2080 ha was set up by the Cabinet of Ministers’ of UkrSSR Decree of October 5, 1984 in Yavoriv Lviv Oblast, subordinate to the Ministry of Education and Science of Ukraine. The preserve contains pine, beach, sycamore and oak woods, wetlands, precious due to their cenotic structure and biogeographic origins. 7 forest associations are in the Green Book of Ukraine, 31 species of plants and 17 species of animals are in the Red Book of Ukraine, 40 species of plants and 2 species of animlas are in the European Red list, 70 species of plants and 5 species of animals are in Bern convention lists. The state program for setting up the all-Ukraiian environmental network in 2000-2015 and some international treaties stipulate the setting up of transboundary biosphere preserve «Roztochchya», which will include the natural preserve «Roztochchya» as its component. The documentation concerning the Ukrainian portion of international Ukrainian-Polish biosphere preserve «Roztochchya, has been submitted to MAB/UNESCO.
52 The order of the Ministry of Education and Science of Ukraine of November 01.2010, № 1032 «On reorganizing the «Roztochchya natural preserve under the National Forestry University of Ukraine».
53 Art. 16 of the Law of Ukraine «On Environmental Protection».