Chapter 3: Bulgaria
ALEXANDER KODJABASHEV
Bulgaria has signed and ratified the following international treaties:
The country has also signed the following nonbinding instruments:
In addition, Bulgaria has signed but not ratified the Convention on the Protection and Use of the Transboundary Watercourses and International Lakes adopted at Helsinki, Finland, on March 17, 1992; Article 16.
Finally, the following are the international treaties that are signed, ratified and published in the official journal of Bulgaria:
It is important to stress that Article 5, line 4 of the Constitution states that the international treaties become internal law only after the publication of the treaty in the official state journal. As a result, the Espoo convention is not yet part of the internal legal system.
The implementation of the ratified and published international treaties is not common in Bulgaria. There is some implementation of the Bern Convention of 1979 and of the Ramsar Convention. Since the public participation rules of these two treaties provide guidelines for active provision of information, the government complies with these rules. However, the public is usually not inclined to base its demands on the international treaties.
The problem is that procedural rules do not exist in Bulgaria; therefore, the public cannot insist on changing them in order to comply with the Sofia guidelines.
One example is the community of in Troyan, in Botevgrad. The local regulation in Troyan provided rules for submitting information about water consumption and water pollution. These rules were adopted because there was a water crisis in the community of Troyan. Again on this basis in the local regulation were provided rules for sanctioning the destruction of water counters in the industrial facilities.
In practice the local governments are still rather dependent on the central government because local budgets depend on the central budget: taxes go first to the central budget, then part of the remainder are sent to the local governments.
The right to adopt local environmental regulations is used progressively compared with the national level. The main problem at the local level is the implementation of the already adopted rules, and sometimes the right to adopt local rules is used in an incorrect way, for example the adoption in Vidin and in Petrich of a local "green tax" that was not provided for in the Tax Law.
The law defines environmental information not by stating the components of the "environment" but by listing the different types of situations in which the components of the environment can be influenced (Article 8 of the Environment Protection Law). Thus, the law says that information about the state of the environment is:
Conditions for Obtaining Information
From a legal point of view, anybody has the right to receive environmental information (Article 9 of the Environment Protection Law). The Bulgarian legal system does not give more rights to NGOs than to the individuals. This means that all rights of NGOs are the same as the rights of the individuals.
If information is requested, lower-level agencies (but not the ministries) are supposed to provide the information within one month from the date of the demand. The period for issuing any administrative decision also is one month, according to the general rules of the Administrative Procedure Law.
There are no special rules in Bulgaria for providing environmental information. There also is no specific requirement to respond to a request for information or to issue a refusal. If an authority does not respond within one month, it generally counts as a tacit refusal to give information.
For the Ministry of Environment and Waters and for the other ministries, this deadline is two weeks (Article 12, line 2 of the Environment Protection Law).
With regard to the form of information, there are no regulations dictating how information should be delivered. For this reason, individuals do not have an explicit right to request a copy of a particular document nor the right to inspect documents, even if there are cases in which the public has been allowed to do so. This question has been brought to the Supreme Court, but the court has not settled this issue.
Refusal to Provide Information
According to the Constitution, authorities can refuse to disclose information that is a state secret, other secret or is protected by a specific law (Article 41, line 2 of the Constitution). There are no specific rules for refusing environmental information, and there is neither a list of exemptions nor a public interest test possibility.
Informal Guidelines for Agencies and the Public
There are no general guidelines for the public on how to request information.
Specific Institutions/Officials to Provide Information
There is no public institution or official charged specifically with providing environmental or other information to the public.
Article 11 of the EPL names four different authorities that collect information about the environment: the Ministry of the Environment and Waters (MoEW), the Ministry of Health (MoH), the Ministry of Agriculture (MoA) and the National Statistic Institute (NSI). It is therefore logical to conclude that the public authorities who would give information about the environment are the authorities mentioned in Article 11 of the EPL. So far there has not been any attempt to involve authorities aside from the MoEW in the procedure for submitting environmental information.
If an Authority Does Not Possess the Information
If the public authority does not possess requested information and there is another agency that has the information, the general administrative rule is that the authority that received the request should forward it to the competent authority. In practice, however, this does not happen because the different authorities do not know exactly what kind of information is collected and exists in the different agencies. In many cases, the authority that receives a request but does not have the information simply refuses the request without forwarding it.
Costs of Obtaining Information
Charges present an obstacle for creating a regulation on access to environmental information because charges are always treated by state officials as a pretext and hindrance for giving information.
Public authorities are obliged to actively disseminate environmental information in several cases.
For example, in the case of a natural or industrial accident that has caused pollution or nuisance, the public authority should inform the public about "the changes in the environment about the measures taken to limit the damages and about the prescriptions to the citizens to prevent health damages." (Article 13 of the Environment Protection Law).
In case of imminent danger of substantial pollution or nuisance to the environment, the public authorities must inform the population immediately and take the necessary measures to prevent the harmful effects. This could also mean informing citizens about current environmental conditions (Article 13a of the Environment Protection Law).
The institutions that are required to actively disseminate such environmental information in Bulgaria are the MoEW and the institution called "Civil Defense". There is no clear distinction as to when a matter should be handled by the MoEW or by the Civil Defense office. It is assumed that the Civil Defense office will take control in more severe accidents. This does not mean, however, that the public cannot request information from the MoEW in these cases.
Methods of Dissemination
There are no guidelines dictating how public authorities should provide information, and there are no special rules about the form of the information to be given to the public.
The typical vehicles used by the public authorities to provide environmental information are the mass media environmental bulletins, which are available at the MoEW offices and open to all citizens and annual reports on the state of the environment.
Electronic Means of Dissemination
There is no obligation to make information accessible electronically. Therefore, the public does not have the right to expect information on disk, via e-mail or via the Internet.
Nongovernmental Centers
No nongovernmental centers for environmental information could be identified in Bulgaria.
Business are also obliged to provide information about the harmful components of the goods and of the services they offer and about the eventual harmful effect of the services (Article 14 of the Environment Protection Law).
However, there does not exist any mechanisms to ensure the flow of environmental information from the private sector to the responsible public authorities.
There is a clear right to public participation, including several specific rights, in the institution of EIA. According to the EIA procedure, citizens have the right to be informed, the right to take part in the public discussion of a project, the right to make comments and have them taken into account, and the right to appeal the decision of the competent authority.
Public participation rights exist in other procedures but in a less developed form (i.e. only some of the components of public participation are ensured). For example the procedure for adoption of land-use plans provides "public discussion" of the land-use plan, but unlike the EIA procedure, the omission of the public discussion is not a valid reason to appeal the procedure.
Another recent example is the Law on the Purity of the Atmospheric Air (LCAA), passed in 1996. The law calls for public participation in cases where weather conditions or industrial and other activities at a given location cause higher-than-allowable concentrations of harmful substances. In these cases, the local council cooperates with the local Regional Inspectorate for the Environment to adopt a plan for action that may include stricter standards to protect the air (Article 27, line 1 of the LCAA). Although the public does not participate in preparing the plan, it is discussed with the citizens before implementation.
The right to referendum is provided in the Constitution. A new law, passed in 1996, gives a more developed structure for the procedure for holding national and local referenda, as well as for holding local assemblies and for public initiatives.
A national referendum is held on issues that can be decided by the National Assembly. The procedure for the national referendum provides that one-fourth of the MPs, the president of the republic, or the Council of Ministers can submit a referendum question to the National Assembly. The National Assembly then decides whether to hold the referendum and chooses the exact question to be asked in the polling. The president of the republic sets the date for the voting.
A local referendum can be called to decide issues that fall under the jurisdiction of the local council. The referendum is dictated by the local council, which decides the question of the referendum and sets the date.
There are no privileged groups as far as referenda are concerned.
There is no explicit provision for environmental issues in the law, but generally a national referendum could be called to decide environmental issues as well as other issues that could be decided by the parliament.
A national referendum has not been called in Bulgaria since the adoption of the new law. A few local referenda have been held to decide issues such as the division of one municipality to several new municipalities.
Both national and local referenda are binding, and the law explicitly states that a decision from a referendum needs no additional approval.
There is no case in which authorities can be bound by the citizens to call a referendum.
Right to Initiative
There is no possibility for citizens to initiate national lawmaking or decisionmaking. The right to legal initiative belongs primarily to the member of parliament (MPs).
Although this seems quite restrictive, the rules for lawmaking are democratic in another way - any MP can initiative a law. This means that in order to initiate official discussion of a new law, the public only needs to find a single MP who will agree to start the process.
In addition, the local level does have a process for direct initiative: the local assembly and the local subscription. These two tools have been developed in the law; even in Constitution uses the word "initiative" in speaking about the right of "appeals, initiatives, complaints."
Local assemblies (Article 21 of the Local Government and Local Administration Act) can decide issues linked with:
Although these issues are not purely environmental, they do concern the environment to some extent.
The local assembly can be convened by one-fourth of the electorate in a given municipality or in a sector of the municipality (the smallest unit is election "section"). The local assembly can decide the issues mentioned above and can force the people to take part in the initiative that was decided by the local assembly or to pay a sum of money that is equal to the labor price. The decisions of the local assembly can be executed against the delinquent payers with the help of the judge as if these were credits, given by the state (with some additional protection).
The local subscription is a tool that allows at least one-fifth of the electorate (or 200 people) to have some issue included in the agenda of the local council. Local subscription can be used in cases where the local councilors do not want to treat a particular issue.
However, in some cases representatives of the public can be included in consultative committees, such as the commissions of local councils. Since 1997, there have been instances of NGOs taking part in the work of Parliamentary commissions, but there is no set system by which this occurs. NGOs are included when the MPs want to let NGOs participate in the work of the commissions and not when NGOs want to take part in this work. There is no way to assure the presence of NGOs if the MPs do not want it.
In other cases, a representative of the public is included on the board of a national institution. For example, the board of the National Ecological Trust Fund has representative of the public among its members. This is a new regulation that appeared after 1995. Another such example is the board of the National Ecofund, which is composed of 12 people, one of whom represents an NGO.
The legal provisions for such participation do not give privilege to any group of the public (i.e. NGOs or citizens) who take part. However, the provisions do not outline any procedure for fair selection or "election" of these representatives, either. As a result, the NGO representative often is a person close to the governing circle. This was the case in Pleven, where the foundation Kailaka was sanctioned for illegal environmental destruction in a protected natural area. At about the same time sanctions were imposed, a representative of this foundation was "elected" to the board of the local ecofund.
However there is a general rule that administrative decisions should be motivated (Article 15 of the Administrative Procedure Act). Accordingly, reasonable questions from the public about the motivation behind a decision can serve as basis for assessment of an administrative authority's action. In theory, this would mean that the public authority should take into account the public's comments.
The right to make suggestions and comments does exist, not only in the EIA procedure but also in the procedure for issuing construction permits, in the procedure for changing a land-use plan and in construction planning. The effectiveness of this form of participation depends on the concrete efforts that can be carried out. In the past two years, there have been some effective interventions of the public in the EIA procedure. One of them caused a serious change in a development plan of a region in the Pirin mountains.
The main limitation to the public comment is that the public can comment only on the substance of the matter linked with the legal obligations. For example, the public cannot object to a construction that spoils a landscape if the construction is admissible from a legal point of view. In one current case, the public has argued that a proposed glue factory should not be built in a tourist region, but this public comment could be overruled because the law does not prohibit such existence. The Supreme Administrative Court has taken the side of the public and has confirmed the decision of the Regional Court.
Another hindrance to having comment taken into account is a lack of information. Often, because the provision of information procedure takes a long time, the information needed for assessment of the issue is not available until after the decision has already been made.
The final limitation is a lack of resources and/or specialists to help the public assess environmental decisions. This could be called a "money" limitation or "resource" limitation.
Throughout all these processes, there are no privileged groups or citizens.
In cases of policymaking, the public has a right to be informed and to take part in the process via the rules of EIA and other procedures. It is not broadly defined who shall be informed because in the different procedures the parties concerned are different.
The EIA regulations do not state explicitly who shall be informed. Announcement is generally made through the mass media and therefore everyone is informed. In other cases, the informed parties are the directly affected, for example residents who live on the territory where a land-use plan will be adopted.
In the case of issuing permits there is no practice for informing the neighbors or interested organizations, even if these organizations may have interest in taking part in the permitting process.
Principally, required notification can be done through several different means, including:
In practice, notification is usually done properly in cases where there are clear rules. Of course, there are difficulties. For example, the MoEW sometimes publishes announcements for EIA decisions in a low circulation newspaper because it costs less than publishing the information in a more popular paper.
There is no procedure in which transparency exists without the public being able to influence the decisionmaking process.
Openness of Parliamentary Committees
Individuals and NGOs are allowed to participate in the sessions of parliamentary committees. There are no special conditions, but the interested persons should ask and obtain permission of the president of the committee. The committee can decide whether to hear the persons present at the session of the committee.
Individuals also can attend sessions of the Parliament, but they cannot take part in the discussions.
In the past year the parliamentary committees for environment and for energy has invited representatives of NGOs to their sessions.
Although there is no governmental funding especially focused on public participation projects and training, public participation projects can be funded through the National Environmental Ecofund. In the past several months the MoEW has begun arranging competitions among NGOs for funding for projects on several different themes. The first such competition, on treatment of solid waste, has already been completed.
The right to public participation can be defended through appeal only in cases where the law provides for public participation and the action is carried out by administrative decision. Examples include the EIA procedure and the procedure for issuing construction permits. In these cases, the administrative decision can be appealed because it lacked the necessary public input.
There have been several cases in which environmental and public participation rights set forth in the Constitution have been used as a basis before the courts.
One common situation is when the public interest and the public's right to participate in environmental decisions conflicts with the right of an individual to develop his own private property.
Another common situation is when a citizen or NGO appeals an administrative refusal to give environmental information. In these cases, the citizen or NGO bases their case on the Constitutional right to receive the information.
A third scenario is when a local regulation regarding access to environmental information is attacked as unlawful. The Law for Local Government and Local Administration allows local councils to adopt regulations to control the activity of legal and physical persons on the territory of the municipality if there are peculiarities in the local conditions, including the local environmental conditions. In a case like this, the citizen or NGO would have to prove that local conditions were not peculiar enough to warrant the supposedly unlawful regulation; or they could argue that the regulation compromised their Constitutional right to information.
There are no precise statistics on the number of environmental cases tried in the courts each year. The information here is not from the National Institute for Statistics but from the MoEW and from the NGOs. There has been at least two cases appealing an EIA decision. There also have been several cases of prosecutor attempts to bring to court cases of pollution or of destroying protected species under the Penal Code; information about those cases is not available.
With regards to an administrative appeal, if the administration is favorable it is possible to obtain a decision within 10 to 15 days; if a refusal is appealed, the procedure can take as long as six months to a year. The same is valid for the other environmental decisions.
The right of administrative standing is shown in Table 1 and belongs as follows:
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | X | X |
NGOs |
||
| everyone | - | - |
| interested/affected | X | - |
| TABLE 2: Legal Standing Against Government Agencies | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | X | X | - | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | X | X | - | - | - |
As a general rule, interested citizens or NGOs can take an administration to court if the administration fails to issue an individual administrative act. It is valid also for environmental law, but there has not yet been a case in which an interested citizen or NGO brought an administration to court for failing to sanction a polluter.
There is also the general rule of Article 45 of the Law on Obligations that says: "Any person who has caused injury to another person should repair the injury." As far as the general procedure is concerned, the citizen or the NGOs would have to be personally affected in order to bring this type of civil suit.
Article 29 of the EPL transfers the rule to repairing the injury in the environmental field. According to the EPL, compensation for environmental damages should be paid to the owner of the real estate in cases where the real estate and nature coincide. The EPL does not state, however, who can ask for action in cases where damage is inflicted to the environment in general. For example, in the case of marine pollution that kills fish and sea birds, NGOs in a strict sense are not the bodies that have suffered. Therefore, citizens and NGOs are not granted legal standing in these cases.
Finally, there is no common law for the state administration, however, there are special provisions for sanctioning public officials who fail to enforce some legal provisions - for example in the Urban Act. There is also a general principle that public officials are responsible if they are wrongdoers and in case there are damages caused. The problem in environmental law is that often there is not any legal or physical person who can claim to be affected by the damages - for instance when some rare species is affected.
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | X | - | - | - | - |
| interested/affected | - | X | - | - | - |
NGOs |
|||||
| everyone | X | - | - | - | - |
| interested/affected | - | X | - | - | - |
In environmental cases, court judgments that employ common tools (i.e. sanctions against a polluter) are generally enforced without any problem.
To the contrary, a court mandate to release environmental information cannot be carried out meaningfully without imposing a sanction on the official who refuses to give the information.
There are two types of legal proceedings: civil lawsuits and administrative procedures appealing administrative and governmental acts in court. This second type includes EIA, appeal of administrative acts in court, challenging governmental acts, challenging governmental development projects, appeal of a denied information request, etc.
For some of these procedures, for example the administrative procedure, the court fees are negligible - not more than USD 10.
For civil procedures, the fees are more substantial because there is a court fee that equals 4 percent of the sum of the evaluated compensation.
Expert opinions can quickly inflate the legal costs, especially if the case requires a high level of expertise. The average sum is about 25 to 30 times the minimum monthly salary or more.
In the administrative procedure and in the civil procedure the party cannot get a waiver of these costs.
A plaintiff in an administrative procedure is responsible for paying all his or her own fees, however a plaintiff in a civil proceeding can recover the fees and expenses as part of the judgment.
There are, however, some permanent legal advisory services provided by NGOs in the field of human rights protection. There are also some advisory services in the field of consumer protection, but only few in comparison with the number helping secure human rights.
These legal services usually involve consulting - including some research in concrete cases - preparing complaints or letters and eventually meetings with state officials and journalists.
