Center for Environmental Public Advocacy
Slovak Republic
Project No. 20552: Public Participation in Environmental Decisionmaking: NGO and Public Assistance Program
Slovak Republic
Project No. 20552: Public Participation in Environmental Decisionmaking: NGO and Public Assistance Program
Within the scope of another program, entitled "The Law and the Public," CEPA provides legal assistance to both NGOs and the public-at-large. The CEPA's publications - including brochures, books, and handbooks - are key supplementary elements of its public training programs.
Since the EIA process is relatively new in the Slovak Republic, environmentalists and affected citizens are not fully aware of their legal options, and the activities of the authorities and investors are often not in compliance with the law. CEPA offered legal advisory services to NGOs and citizens concerned with regional development projects, especially with respect to participation in current and planned EIA processes and decisionmaking. Mayors of villages affected by the construction of a dam requested legal assistance regarding the violation of the EIA Act. CEPA was asked to participate at public hearings in the affected villages of Dubakovo and Slatinka and assisted NGOs and communities prepare their statements and to file claims.
The right of environmental NGOs to be party to proceedings is still rather limited in the Slovak Republic. As a result, advocacy services have focused on two areas:
Many environmental organizations and municipalities encounter problems in accessing environmental information, and thus in preparing for participation in decisionmaking processes. The most restrictive example found was the behavior of the Subdistrict Environmental Agency in Poltar. The agency denied information to the mayor of Dubakovo on proceedings of a long-term ban on construction in the village. After a joint visit by a CEPA representative and the mayor to the agency's office and an explanation of the legal situation, the mayor received the relevant information.
Similar problems arise regarding the right to assemble. According to the Slovak Constitution, demonstrations or meetings do not require permission of the public authorities, but local authorities often pressure groups to request permission in such cases. CEPA offered assistance so the organizations and municipalities received due consideration from the authorities.
CEPA's recent activities have also shown the need to clarify several controversial interpretations of the provisions of the Building Act that regulate public and municipal participation in the preparation of development projects. CEPA has been approached by some small villages where local development has long been obstructed to set the stage for large, environmentally and socially destructive projects. Such villages, searching for ways to implement their own local development strategies, have received legal assistance in administrative procedures and expert advice on physical and land-use planning, as well as regional planning. In the village of Dubakovo, for example, legal assistance was provided to cancel the bans on building activities and enable the community to participate in the drafting of the regional development plan.
CEPA and other NGOs jointly participated in evaluating a draft version of the Access to Information Act, prepared by the Ministry of Environment. The representative of CEPA, together with other Slovak NGOs, participated in a hearing organized to prepare a platform for the further discussion. This resulted in several suggestions.
In some instances, the simple application of relevant legal standards to a given case was impossible, and broader analysis of the problem or assistance from foreign specialists was needed. In instances like the WOLF case, for example, CEPA analyzed court decisions from different countries regarding administrative standing to determine the chances of environmental NGOs. This analysis, together with the evaluation of the Supreme Court verdict (see below), has laid the foundation for NGOs to become a party to proceedings in environmental decisionmaking. The analysis, Development Opportunities for a Small Village, may become both a basis for local land-use planning and a model for other villages combating similar problems. The analysis of Article 417 of the Civil Code helps NGOs use legal instruments to prevent unsustainable forest management.
CEPA has also focused on the status of the NGOs and offered comments for the draft Act on Foundations prepared by the Ministry of Justice. Together with other NGOs, an alternative draft was developed, the Civic Draft of the Act on Foundations. A significant part of CEPA's legal advisory services have been devoted on providing information and assistance to NGOs in preparing by-laws and statutes or on other legal issues related to their organizational structure.
Because the Slovak Republic faces the destruction of old-growth forests, CEPA organized a training in cooperation with the WOLF Forest Protection Movement on the issues of public participation in forest management plans. Several site visits were also paid to affected villages to discuss legal problems and strategies to solve them.
The project demonstrated the effectiveness of publishing small leaflets and handbooks that focus on specific problems faced by NGOs. As a follow-up to cases solved by CEPA, brief summaries of the different problems were prepared and distributed to NGOs facing similar situations. Five handbooks have been prepared and distributed to date. These handbooks address participation in the forest management plans, fining illegal hunting activities, enforcement of recycling programs at municipal level, writing a petition and legal tools for NGOs to protect themselves against damaging their public image in the media.
Dubakovo: After the mayor was denied information about a construction ban in the village, a CEPA representative helped him get the documents. (photo by Andrej Zeman)
Contacts with authorities on various levels of government and with businesses have been ambiguous and sometimes even controversial, depending on whether a business or the government appears more aligned with investors or with majority public opinion in the given community.
The importance of model cases providing innovative ideas and new solutions became obvious during the lawsuit WOLF vs. Ministry of Agriculture.
The project also demonstrated the effectiveness of enhancing public participation by publishing information materials, practically oriented leaflets and handbooks on specific problems.
After trying various methods of informal participation with no relevant response from governmental authorities, WOLF requested it be allowed to participate as a formal party in developing an FMP for the Sabinov region.
Participation in an administrative proceeding is permissible in the Slovak Republic only if the stipulations set forth by law or in other regulations have been met. WOLF's position was primarily based on what it anticipates will be the impact of the decision on its "legal interests and obligations" on the basis of other, relevant environmental laws and regulations. WOLF's claim for status as a party rested on several arguments: that improper forest management had led to financial losses, that local residents were thus adversely affected, and that WOLF's legal rights and interests guaranteed by the Constitution had been hurt by the decision.
WOLF also asserted that it was bound to participate by the Civil Code, under which all people are obliged to "behave in a manner which causes no harm to health, property, nature, or the living environment." It continues: "Any person threatened by such harm is obliged to act in a manner befitting the level of the dangerous conditions. If the danger is substantial, the endangered person has the right to petition a court to impose an order that appropriate measures be implemented to avert the threatened harm."
WOLF informed the authorities that by requesting participation it was reacting to the neglect of an obligation which the Health Protection Act assigns the Forest Agency. According to the act, "State authorities and municipalities are obliged to create conditions for healthy living conditionsÉ and for a healthy way of life."
When WOLF first applied to the Forest Agency to become a party to the proceedings to develop an FMP, its request was turned down with no reason given. No formal decision was even issued. However, according to the Administrative Procedures Act (APA), in questionable cases a special decision must be issued when a procedure determines who may be among the parties to a proceeding. WOLF, therefore, notified the agency that it had not followed the APA. The agency rejected WOLF's contention, saying that under WOLF's argument, everyone should be granted status as parties to a proceeding and that this would make forest management impossible.
In its appeal against this decision, WOLF repeatedly outlined the reasons for its actions. In reacting to the agency's reasoning, WOLF stated that the agency was completely ignoring the specific situation underlying this case, which dealt with specific financial damages in a particular geographic region.
In its decision on WOLF's appeal, the Ministry of Agriculture said WOLF had failed to prove that it complied with any of the conditions defined by the APA. The authorities also failed to provide direct answers to the claims of financial loss caused by poor forest management based on the FMP.
Generally, the stance of the agencies did not appear very convincing. WOLF realized the importance of clarifying its strategy if the group was to be admitted as a party to the proceedings. This could set the stage for other cases in which decisions by state agencies cause the deterioration of the living environment and/or financial losses, so WOLF appealed Ministry of Agriculture's decision to the Supreme Court.
In its complaint, WOLF focused on the statement in the ministry decision that, in view of WOLF's internal rules, WOLF would not be affected by the decision in its capacity as a legal entity. WOLF stated that it was established to initiate the protection of old growth forests and that implementing this was its very mission, as established in its Articles of Association. The legal guarantee of this interest is provided by the Forest Management Act (FMA) as well as by the Forest Act. According to the FMA, "all forests must be managed by a plan." Since the FMP covers a 10-year period, it will markedly influence forest conservation in Slovakia, whether in a positive or negative manner, as well as the conditions for further development of the country's forests as functioning ecosystems.
Thus, contended WOLF, the decision concerning the FMP is clearly one which directly affects WOLF's interests as guaranteed by law. WOLF further argued that the ministry insufficiently and inadequately analyzed the issue and was mistaken in applying the APA. In turn, WOLF recommended a review and nullification of the ministry decision and requested that the issue be returned to a district forest agency for a new decision.
The Supreme Court rejected WOLF's complaint. Its decision was nonetheless noteworthy on several fronts. For example, this was the first court interpretation of the criteria set forth in the APA. The Court stated that WOLF is a legal entity, and that is the first criterion that must be fulfilled to be considered a party to a proceeding. WOLF is now preparing a comprehensive evaluation of the judgment.
In conclusion, Wolf vs. Ministry of Agriculture helped clarify the criteria which must be met in the Slovak Republic to obtain status as a party to proceedings. The final court decision outlined some of these criteria. As a result, it may encourage other NGOs in their efforts to participate in administrative proceedings. Apart from this, the decision was also important because it capped the first lawsuit between an NGO and a government authority in the Slovak Republic. Despite the negative outcome of the lawsuit, its unprecedented nature may, in fact, be a redeeming factor: It may heighten the awareness of public authorities to their obligations with respect to both the general public and NGOs in the decisionmaking process.
