Chapter 4: Croatia
ZELIMIR GRZANCIC
Besides these provisions which directly address environmental matters, some other constitutional provisions are also applied therein. Article 38 guarantees freedom of thought and expression, including "freedom of the press and other media of communication, freedom of speech and public expression, and free establishment of all institutions of public communication." In addition, the same article forbids censorship and guarantees journalists the right to freedom of reporting and access to information. There is no specific constitutional right providing for access to information for the general public.
Another provision of importance for public participation is Article 46. It states that "All citizens shall have the right to submit petitions and complaints, to make proposals to government and other public bodies, and to receive answers thereto."
The Republic of Croatia has expressed the following reservations with regard to the United Nations Framework Convention on Climate Change: "The Republic of Croatia declares that it intends to be bound by the provisions of Annex 1, as a country undergoing the process of transition to a market economy."
Overall, the international conventions are being regularly implemented in Croatia. The problem, however, is that it sometimes takes years before certain treaties are fully implemented. The reason for such delays includes lack of adequate financial and human resources. Furthermore, since implementation normally requires either the issuance of new domestic laws and regulations or substantial amendments to existing ones, it takes time to satisfy the procedural lawmaking requirements.
An overview of relevant activities is given according to each major convention in force in the Republic of Croatia.
The Espoo Convention was entered into force on July 8, 1996. As an example of the Convention's application, officers with the State Directorate for Nature and Environmental Protection have pointed out the case of a planned oil rig (platform) in the northern Adriatic Sea, where Italy is the affected party. In accordance with the provisions of the Espoo Convention, the state directorate is currently preparing an official notice for the competent Italian body.
In order to implement this Convention, the Croatian State Directorate for Nature and Environmental Protection has obtained adequate financial resources from the Croatian Government and Global Environmental Facility (GEF). These resources shall serve the purpose of preparing a National Biodiversity Protection Strategy and Action Plan on Biodiversity Protection. Both documents are in the final stage of completion and are expected to be issued by the summer of 1998. Both the Strategy and the Action Plan contain applications of public participation provisions of the Convention on Biological Diversity.
The new Law on Nature Protection, currently being drafted by the state directorate, will also consider as built-in the Convention on Biological Diversity and its provisions.
The application of the Basel Convention has already become routine procedure, conducted by the State Directorate for Nature and Environmental Protection. Thus notifications, permits and other documents required by the Basel Convention are being regularly issued and processed.
The obligation to "...promote public awareness programs on climate changes and its effects, public access to information on climate changes and its effects and public participation in addressing climate changes and its effects and developing adequate response," as stated in Article 6(a), is a substantial public participation provision of the Convention. As part of its implementation the state directorate's magazine, "The Environment," publishes relevant information on climate change. In addition, the State Directorate holds press conferences on events regarding climate change. As another practical example of promoting public awareness on climatic change, we might list the public lectures given by internationally recognized experts and organized by the Museum of Natural History in Rijeka in October 1997.
In Croatia the governmental agency in charge of water bodies is the State Directorate for Water. In this way water as a resource is excluded from the authority of the State Directorate for Nature and Environmental Protection and is managed as a separate administrative body. Exceptions include the waters of the Adriatic Sea, whose protection is shared among the Department for the Adriatic Sea, a branch within the State Directorate for Nature and Environmental Protection, and the State Directorate for Water.
The provisions of the Convention are primarily implemented in the Law on Water (N.N. 107, December 1995), which is a major domestic code on the management and protection of water. Also, several bylaws are currently in the process of being adopted and are expected to be issued by the end of 1998.
Comprehensive legal steps have been taken with regard to the international implementation of the Convention. Thus, Croatia has concluded several bilateral international contracts on the cooperation of water management with neighboring countries. These contracts have been made with Hungary ("Narodne Novine, International Treaties," No. 10, 1994); Slovenia ("Narodne Novine, International Treaties," No. 10, 1997); and Bosnia and Herzegovina ("Narodne Novine, International Treaties," No. 1/12, 1996). Furthermore, Croatia is a party to the regional Convention on Cooperation, Protection and Sustainable Use of the Danube River.
Finally, pursuant to the Convention, Croatia and its neighboring states have established commissions for the purpose of exchanging relevant information on shared waters.
The right of local communities to adopt laws and regulations that are exclusively applicable to their own territories emerges from Article 128, Paragraph 2 of the constitution, which states that "The right to local self-government shall include the right to decide on needs and interests of local significance, particularly of localities and housing, public utilities, child care, social welfare, culture, physical culture, sport and technical culture, and the protection and improvement of the environment."
Pursuant to provisions of the Law of Local Administration and Self Management (N.N. 90, December 1992), the representative bodies of the counties, municipalities and towns are authorized on adoption of decisions and other general acts within the statutory scope of their self management competence (Article 74).
With regard to environmental matters, the subject law in Article 13 charges local self management bodies with ensuring the conditions for spatial planning, land planning and environmental protection. However, that competence is conditioned by virtue of Article 13 Paragraph 2, which roughly states that in cases where the subject matter (i.e. spatial planning, land planning and environmental protection) is regulated by a special law, such a special law will prevail. In addition, Article 7 of the Law on Environmental Protection (N.N. 82, November 1994) states that "Local administration and self management bodies shall arrange, organize, finance, and promote the activities on environmental protection that are of regional and/or local importance."
Environmental protection activity by the local administration and self management bodies includes:
As a practical example numerous spatial arrangement plans have to be mentioned that exist on both the county and town or municipal level, in addition to PRTRs, and contingency plans in cases of sudden marine pollution by hazardous substances (at the county level).
Following the constitutional provision on journalists' right of access to information, the Croatian Government has passed two laws on a very similar matter which are both in force. The Law on Public Informing (N.N. 22, April 1992) and the Law on Public Reporting (N.N. 83, October 1996) contain provisions of an almost identical wording on journalists' access to information. Thus, the information in possession of legislative, executive and judicial bodies, private persons that perform public services, administrative bodies, and local self management bodies are available to journalists in accordance with regulations arranging the internal order of these bodies (Law on Public Reporting, Article 5; Law on Public Informing, Article 5).
It must be emphasized that these laws are applicable to journalists and other professionals in the information/media industry.
The provision on access to environmental information is contained in the Law on Environmental Protection. It ensures the publicity of environmental data by imposing a duty to inform the public on environmental matters, to respond to requests for environmental information, and to give prompt public notice in cases of emergency.
Article 49, titled "Public Character of Environmental Data" is a key provision on access to environmental information within the domestic legal system. Due to its important subject matter, the text is given in full:
Although no explicit definition of environmental information is given, Article 49 of the Law on Environmental Protection - otherwise imposing an obligation to provide publicity about environmental data/information - lists the following data as subject to dissemination:
Conditions for Obtaining Information
Pursuant to legislation, the following public authorities are obliged to provide information and/or environmental information:
Private bodies that perform public services are obliged to provide information and/or environmental information if they are in possession of the following:
Businesses are obliged to provide environmental information if they meet two requirements:
The agency is obliged to respond to requests for information within the term of one month upon receipt of a request for information. The same term must be obeyed when the agency is obliged to provide the information (Article 49, Paragraph 4).
Since the abovementioned provision states that agencies (and other listed bodies) "must inform the public and provide the interested institutions, organizations and individuals with the available data within a month from having received the request," it leans toward the conclusion that both the term for response to the request and term for providing the information run simultaneously.
The legislation does not regulate the time limit for issuing a refusal to the request for information.
The following subjects are granted the right to receive environmental information (Article 49, Paragraph 4):
There is no particular limitation as to who may receive environmental information. Nevertheless, bodies in possession of information are exempt from the duty to inform in cases where the requested information is protected by law as a national, military, official or business secret.
Neither the form nor the right to specify the form of the environmental information are regulated under Croatian environmental or other laws. As for costs related to obtaining environmental information, Article 49 of the Law on Environmental Protection states that "a special regulation...may set the fees to be paid for the data provided, in relation to the material expenses of the data provider."
Since no such special regulation exists as yet, it is difficult to determine to what extent such fees might pose an obstacle for a person requesting information.
Refusal to Provide Information
The public authorities are allowed to refuse provision of information and/or environmental information. In accordance with the Law on Environmental Protection, (Article 49, Paragraph 1), the bodies listed are obliged to provide environmental information, unless such information is protected as a secret by special law. In this case, "special law" means the Law on Protection of the Secrecy of Data (N.N. 108, December 1996).
The Law recognizes five major categories of secret information (Article 3):
The modes of establishing and enforcing protection for each of the abovementioned forms are precisely defined by provisions of the subject law.
A "national (state) secret" is defined as data established as a secret by law, other regulation, or by a general act passed by an authorized body, the discovery of which would cause dire consequences to national security or the national interests of the Republic of Croatia.
"Official secrets" are data - established as a secret by law, other regulation, or general act based on law and issued by the authorized body - collected and used by public agencies. The law does not mention any particular types of data to be protected as official secrets, which means that it could be any data collected and used by the agencies.
As for "business secrets," such types of secrets exist for the purposes of protection of certain business data that could - if discovered by an unauthorized person - cause damage to companies' commercial interests. The establishment of a business secret falls within the domain of the company itself, but there are some significant limits. For instance, data cannot be established as a business secret if its discovery is not reasonably contrary to a companies' interests.
A "personal secret" is relevant within certain professions such as religious confessor, attorney, physician, etc.
The Law on Protection of the Secrecy of Data does not provide any particular public interest test.
Informal Guidelines for Agencies and the Public
There are no guidelines for public authorities on the mode of providing information and/or environmental information. Nor are there any guidelines for the public on how to request information and/or environmental information.
Specific Institutions/Officials to Provide Information
No specialized governmental institution responsible for providing information and/or environmental information to the public exists. According to informal information by officers with the State Directorate of Nature and Environmental Protection, the drafting of an internal regulation on establishing a service within the state directorate is in progress.
If an Authority Does Not Possess the Information
A procedure in case public authorities do not possess the environmental information has not been anticipated by the special law, i.e. the Law on Environmental Protection. Therefore, the Law on General Administrative Procedure (N.N.53, June 1991) applies as a law generally binding to all administrative agencies and their proceedings.
However, neither law contains provisions regulating non-possession of requested information, or of information handling in general. The Law on General Administrative Procedure could apply only with the assumption that non-possession is construed as the incompetence of an administrative body in consideration of an application. Thus, Article 66, Paragraph 3 of the Law on General Administrative Procedure mandates that in case an administrative body is not competent to receive the request the official within that body shall inform the applicant and forward the request to the competent body. If the applicant, despite the notification, still insists on a response by the noncompetent body, the latter is obliged to accept the request, but is allowed to issue a conclusion on the rejection of the request.
Since official requests for environmental information are still extremely rare, the efficiency of the above provision does not yet confirm its role in practice.
Among the other fundamental environmental protection principles, the Law on Environmental Protection states the principle of access to information and public participation, as regulated under Article 17. Such a principle is realized through instruments such as the report on the state of the environment (Art. 22), register of environmental pollution (Art. 40), and the environmental protection informational system (Art. 41).
The lawmaking bodies in Croatia have recently passed a number of variously prioritized special laws and regulations regarding access to environmental information and public participation. These acts include information collecting mechanisms as well as environmental reporting. However, despite the fact that the terms for their publication have already expired, certain lower priority regulations whose issuance has been ordered by the Law on Environmental Protection have still not been published.
Public authorities, legal persons with public authorities, legal persons with environmental competencies and legal persons polluting the environment by their activities are obliged to actively disseminate environmental information pursuant to the Law on Environmental Protection, Article 49, Paragraph 2;5). The Regulations on Establishing and Acting of the Emergency Information System in the Republic of Croatia (N.N.11, February 1993) also arrange the system of specially created bodies with a duty to disseminate environmental information in cases of emergency.
The Emergency Information Center of the Republic of Croatia at the national level, and Emergency Information Service at the county level provide a comprehensive network of bodies charged with the activities of warning in cases of emergency. Regulations list ecological accidents and emergencies among other harmful occurrences.
The following types of information and/or environmental information are disseminated actively by the public authorities:
Article 30 of a new Law on Concluding and Enforcing of International Treaties (N.N. 28, April 1996) imposes an obligation to publish acts of ratification of international treaties along with the full text of the treaty in the "Public Gazette: International Treaties" ("Narodne Novine, mezunarodni ugovori"). Treaties are normally published in the Croatian language, or accompanied by a Croatian translation.
National legislation, including environmental legislation, is also regularly published in the "Public Gazette" ("Narodne Novine").
Methods of Dissemination
Articles 60-63 of Chapter VIII of the Law on Public Institutions introduce the provisions applicable to the publicity of an institution's work. Article 61 provides that an institution is, with respect to the nature of its activity, obliged to inform citizens, legal persons, and other users of its services on the terms and conditions of the activities and services for which it was established. Provision of such information must be given truly and in due course, in an appropriate mode. It must also be given promptly or within the "adequate period."
According to Article 62, a public institution is mandated upon request by the media to submit information about its activities and to provide insight into adequate documentation. However, institutions are allowed to deny submission of information in cases where such information has been declared a secret by laws and regulations, or if it contains personal data on natural persons.
Regarding scientific, expert or other conferences or workshops on issues of public interest, an institution shall notify the media and provide for its presence (Article 63).
The Law on Air Protection (N.N. 48, July 1995) provides for the establishment of central and local networks with the purpose of air quality monitoring. These networks ought to be established on state and local self-management levels. The data obtained for the state network are public, published in the form of air quality reports. At the local level, such data are published annually in an official gazette. Both form an integral part of the environmental protection information system. These data are available to the public under the terms and conditions of a separate law which - not surprisingly - was still not issued.
Similar regulations can be found in Article 9 of the Law on Waste (N.N. 34, May 1995), which states that "...the Report on the State of the Environment contains a separate part on waste treatment." At the local level, the completion of adequate reports on waste treatment falls within the competence of the county assembly, i.e. the Assembly of the City of Zagreb.
Another important legislative feature considering access to information regarding protected natural areas lies in the provisions of the Law on Public Institutions (N.N. 76, August 1993). Namely, Article 17 of the Law on Nature Protection (N.N. 30, April 1994) provides for protected natural areas to be governed by adequately established public institutions.
Electronic Means of Dissemination
Although there is no obligation to spread information and/or environmental information electronically, the possibilities of accessing national laws and regulations via Internet are certainly worth mentioning. The entire content of the "Public Gazette" ("Narodne novine") is accessible for issues published from 1993 on. Although access to that service - provided by the "Narodne novine" public company - is still free of charge, the introduction of registration and fees have been already announced. The web address of "Narodne novine" is http://www.nn.hr.
Nongovernmental Centers
There are no specific nongovernmental environmental information centers, but many NGOs disseminate information relevant to their activities.
The Regulations on Register (Cadastre) of Emissions into Environment (N.N. 36, May 1996) address the duty to keep the Register of Emissions into the Environment, which forms an integral part of a Register of Environmental Pollution (otherwise provided by Article 40 of the Law on Environmental Protection). Register of Emissions into the Environment is defined as the collection of data on sources, type, quantity, place and mode of emission, effluence or disposal of harmful substances. The data are to be collected for a period of one calendar year (Article 1, Paragraph 3).
The register is to be maintained by the county or town department charged in environmental matters (Article 24); while Article 25 obliges polluters (defined as a "legal person who within its activity owns or uses a single [certain] source of emission and/or produces, collects, or processes the waste") to fill in and deliver the forms containing requested data to the authorized department. The subject registers do not exist in practice yet, but some preliminary steps have already been taken.
These informational mechanisms provided by the Law on Waste, Law on Air Protection, and Regulations on Register of Emissions into the Environment are actually PRTR type of systems and they are mandatory.
Although interpretation of this article's broad wording may lead to the conclusion that it ensures an efficient public participation tool, the lack of enforceable bylaws or regulations on lawmaking issues substantially narrows its practical application.
Article 46 has been implemented within the Standing Orders of the Chamber of Deputies of the Parliament (N.N. 99, December 1995), Article 126, Paragraph 2, which states, "In case a petition or complaint on issuance of law is addressed to the parliamentary Chamber of Deputies, a president of the Chamber of Deputies shall forward it to the president of a competent parliamentary working body, which shall, not later than three months, inform the petitioner on the result." Thus, despite the lack of direct public participation, an enforceable right to be informed of the result of the petition has been established.
However, there is the following limited possibility of indirect public participation through subjects authorized to propose laws: "All representatives in the Chamber of Deputies, working bodies of the Chamber of Deputies, the Chamber of Counties, and the Government of the Republic of Croatia shall have the right to propose laws" (Chapter IV. Organization of Government; Subchapter 1. The Croatian Parliament, Article 85).
As in the above case, the constitutional provision of Article 85 has been worked out in detail by the Standing Orders of the Chamber of Deputies of the Parliament, (Art. 126, Paragraph 1): "The representatives and other law proponents may, on occasion of suggesting the need for issuance of certain law, refer to petitions and complaints by citizens." But this provides representatives with an optional right to refer to a petition and/or complaint, rather than a duty to act in accordance with it.
The Parliamentary Committee for Petitions and Complaints is a generally competent body for its receipt and handling, and the Parliamentary Committee for Spatial Planning and Environmental Protection is a body competent by matter. The average annual number of environment-related petitions or complaints to the parliamentary bodies is about 10, while the majority are directly addressed to the Parliamentary Committee for Spatial Planning and Environmental Protection.
Indirect participation, i.e. participation through deputies in parliament sometimes results in positive achievements. A typical case is the proposed location for the radioactive waste dump site that was planned to be built in the Papuk and Psunj mountains of Bjelovarsko-Bilogorska County. After intensive lobbying both by local citizens and NGOs, all the deputies in parliament from that region - regardless of their political affiliation - succeeded in efforts to remove the proposed location from a National Strategy of Physical Planning.
With regard to local levels, Article 129 of the constitution provides an adequate public participation option: "Citizens may directly participate in the management of local affairs, in conformity with law and the bylaws of local self-government units." In addition, the right to decide on the needs and interests of local significance (Article 128) includes the protection and improvement of the environment.
This form of public participation is largely realized through referenda, which is a subject of two other laws - the Law on Local Government and Self-Government (N.N. 90, April 1992), and the Law on Referenda and Other Forms of Personal Participation in the Execution of State Authority and Local Self-Government (N.N. 33, April 1996).
Generally, the right to a referendum is vested in Article 87 of the Constitution. A referendum may be called by the Chamber of Deputies for the amendment of the constitution, on a bill, or any other issue falling within its competence; or by the president of the republic on any issue which he considers to be important for the independence, unity and existence of the republic.
These forms of referendum established by the constitution are called "national referenda," which ought to be differentiated from a "local referendum." Due to its nature, a national referendum could hardly, theoretically or practically, play a significant role regarding environmental matters. It is the only form of referendum that authorities are bound to call.
The local referendum is not explicitly mentioned in the constitution, but is a subject of the Law on Referenda and Other Forms of Personal Participation in the Execution of State Authority and Local Self-Government, and Law on Local Government and Self-Government. Thus, the local referendum may be called by the representative body of the county, municipality, or town within their authorities.
Citizens may directly participate in deciding on local affairs by referendum and local meetings. Since a referendum may be called for matters within the local authorities, it includes environmental issues as well. Those registered to vote and claiming residence in the territory of the referendum may vote on it. Voting is carried out by ballot. The referendum binds the representative body of the local government (Law on Local Government and Self-Government, Article 17).
A general problem with local self-government is that its competence on a declarative level appears to be significantly wider than it is in practice, where the special laws and regulations mostly allow marginal decisionmaking only. This is typical in environmental matters as well.
Right to Initiative
Besides those already mentioned, such a right does not exist in other forms.
| BOX 1: Examples of Cases of Public Participation |
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Protest Marches Against the Building of the Coal Power Plant Plomin II In April of both 1995 and 1996, the "Stribor," an NGO from Rijeka, organized two protest marches from Rijeka to the Croatian Parliament in Zagreb against the building of a coal power plant Plomin II. The main goal of this action was to attract media attention and to raise public awareness on environmental problems related with building of the Plomin II. A letter containing a demand for suspension of further building was delivered to the president of the parliament, along with an oral explanation of the problem. In addition, the "Stribor" has printed occasional stickers which were distributed along the way to Zagreb. Although the action succeeded in its goals of media coverage and raising public awareness, the building itself was not stopped. The final report of the project particularly points out a lack of financial sources, which was, however, mitigated by the assistance of people who were supporting environmentalists by providing them room and board. "For Living Drava River" "For Living Drava River" was a public participation project supported by REC. The scope of the project, undertaken by Ecological Society Durdevac, was to accomplish two goals:
According to the final report, both goals were realized successfully. A comprehensive media campaign that included newspaper, radio and TV has largely contributed to creating a polemical atmosphere in public. It has initiated local and county governments to hold several public hearings and debates. Also, a brilliant documentary film "For Living Drava River" was prepared by Mladen Trnski and was broadcasted on national TV. As a result, at the time when the projects' final report was completed (November 1997) the commission for evaluation of the EIA study was still refusing to issue a positive opinion on "Novo Virje" EIA study. "Lukovo Sugarje" Coal Power Plant The Croatian National Electric Company (HEP) proposed a coal power plant to be built at Lukovo Sugarje by the mountain of Velebit, which is protected as a park of nature. The area is also included into the UNESCO's Man and the Biosphere (MAB) Program as a part of international biosphere reserves network. The "Green Action," a major environmental NGO from Zagreb, undertook a wide range of activities to prevent the building of Lukovo Sugarje power plant. Thus, the "Green Action" provided expert advisory service and logistic support to the local committee and people who are engaged in lobbying against the power plant. Furthermore, the Croatian mountaineering society "Zagreb-Matica" has started an initiative among all domestic mountaineering and hiking societies to sign the "SOS for Velebit" petition. Particularly important is a lawsuit filed to the constitutional court by the "Green Action" challenging the National Spatial Planning Strategy which has included the controversial location of the power plant on the basis of violating environmental laws and regulations. Also, on September 27th 1997 in Zagreb, the "Green Action" organized a well visited rock concert named "SOS for Velebit." Despite all efforts, the proposed location was still in a Spatial Planning Strategy at the time when this report was completed. Since by its nature the Strategy is not an executive document, environmentalists continue the battle to exclude the coal plant location from enforceable documents that will follow in the near future.
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There is no group, either formal or informal, that is regularly consulted on law and policymaking. Instead, some individual experts are regularly consulted by the Parliamentary Committee for Spatial Planning and Environmental Protection on certain matters or legislation.
On March 27, 1997, the Croatian Government passed a new Regulation on Environmental Impact Assessment (N.N. 34, April 1997) that has replaced the "Regulations on Environmental Impact Assessment Study" of 1984, amended in 1990. Such a new law certainly means an efficient legal tool considering public participation in the environmental decisionmaking process.
The core of these regulations is an obligation to prepare the environmental impact assessment for certain spatial interventions as listed in an annex (Spatial Intervention List), which is an integral part of the Law on EIA. The expert background for the environmental impact assessment is the Environmental Impact Assessment Study (Article 4). The study has to evaluate the possible environmental impact of each spatial intervention regarding various factors such as meteorological, climatological, hydrological, geological, sociological, urban, etc. Pursuant to Article 11, the acceptability of the environmental impact assessment has to be examined and evaluated by the Commission for Evaluation of Environmental Impact Assessment, appointed by the Croatian Government.
Chapter V of the Law on EIA, named "Participation of the Public," outlines terms of public participation within the process of preparing the Environmental Impact Assessment Study.
According to Article 19, an EIA Study positively assessed by the Commission for Evaluation of Environmental Impact Assessment is forwarded to the coordinating body, which has to start the public insight within 30 days. Documentation that has to be presented for a public insight is the entire EIA study documentation along with relevant summaries. The EIA study "...shall be made available for public review, which duration is 15 days at least, and 60 days at most."
The public is entitled to give opinions, proposals and suggestions in written or oral form. Article 23 obliges the Commission for Evaluation of Environmental Impact Assess-ment to answer and/or explain each opinion, proposal or suggestion given by the public that was not adopted.
There are two official bodies involved in the performance of public insight of EIA study: the coordinating body (territorially competent body within the local self-management in charge of environmental protection) and the enforcing body (provided either by local governments' statute or by its executive body). The coordinating body has a duty to submit the opinions, proposals and suggestions obtained during the public insight to the Commission for Evaluation of Environmental Impact Assessment (Article 21).
This form of public participation could be evaluated as rather efficient, but the problem is that in practice, NGOs or citizens - besides those who would be directly affected by certain spatial interventions - very rarely make use of the opportunity.
The NGOs are regularly invited on major thematic sessions, especially regarding lawmaking. Furthermore, there is a tradition since 1990 that the Parliamentary Committee invites the representatives of major Croatian NGOs such as Green Action, Croatian Ecological Society, Regional Environmental Center, and Our Beautiful Country to the parliament with the purpose of informing and consulting. These meetings are held twice a year.
As emphasized by the secretary of the parliamentary committee, the most common obstacle in ensuring the conditions for public participation in the parliamentary lawmaking procedure is that the materials for discussion (proposals of laws and regulations) are frequently delayed when handed over to the parliamentary committee. Consequently, this does not leave enough time for due notification to the interested persons or NGOs.
Public participation in parliamentary sessions is generally regulated by the Standing Orders of the Chamber of Deputies of the Parliament. Article 249 orders issuance of a bylaw on publicity of parliamentary sessions which should bring comprehensive provisions on terms and conditions of public participation by journalists, citizens, media, and broadcasting companies. Notwithstanding, these regulations have not been published yet.
Parliamentary sessions may be accessed. Interested persons (citizens, NGO representatives) may receive information through the media (newspapers, radio, television) on topics of a particular session and must notify the Parliamentary Public Relations Service, which issues invitations to the sessions. Again, this is relatively rarely taken advantage of in practice, which may be interpreted as a lack of interest.
A general right to appeal is, however, provided by Article 18 of the constitution: "The right to appeal against individual legal acts made in first-instance proceedings before courts or other authorized bodies shall be guaranteed...The right to appeal may exceptionally be denied in cases specified by law if other legal safeguards are ensured."
Another broadly-drafted constitutional provision that might be mentioned is Article 19, Paragraph 2, which guarantees judicial review of the legality of individual acts of administrative authorities and bodies vested with public powers.
As far as is known, the abovementioned constitutional provisions were not used as the case arguments in any environmental court review. This could easily be construed by their broad and general nature.
| 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 | X |
The issue of legal standing, both in the administrative procedure regarding the decisionmaking process and in the administrative appeal of that process, is basically a matter of being a party in the procedure. Article 49 of the Law on General Administrative Procedure defines the party as "...a person (any legal or natural person) at whose request the procedure has been initiated, or against whom the procedure is undertaken; or a person who has a right to participate in the procedure with the purpose of protection of his/her rights and legal interests."
These rights are also furthered by applying the material laws from which the persons' rights, obligations, and legal interests arise.
The appeal of an administrative decision is regulated by the Law on Administrative Dispute (N.N. 53, October 1991). The right to initiate an administrative dispute is given to any natural or legal person who considers their rights or legally founded direct personal interests to have been violated by an administrative decision (Article 2, Paragraph 1). Although NGOs, according to Croatian law, have the status of legal persons, their opportunities are significantly narrowed both by the "direct interest test" and a provision of Article 2, Paragraph 4,5 which states roughly that the public interest is generally advocated by bodies such as the public attorney or public defendant.
Croatian administrative procedural law does not especially differ from environmental or any other type of decision. Therefore, general provisions on terms in administrative decisionmaking are applicable herein. The Law on General Administrative Procedure in Article 218 obliges the first instance administrative bodies to issue a decision as soon as possible, but not later than one month upon receipt of the parties' request. Similarly, a decision on appeal has to be issued as soon as possible, but not later than two months upon receipt of the appeal (Article 47). In cases where the administrative body violates the terms for issuance of decision or appeal ("administrative silence"), the party is entitled to file an appeal (Article 218). In practice, these terms are generally respected despite the existence of some contrary examples.
There are other provisions of the Law on General Administrative Procedure which, if applicable, can influence the duration of the decisionmaking process. Duration also depends on the highest administrative level that any particular case will reach.
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | X | - | - | - |
| interested/affected | X | - | - | - | X |
NGOs |
|||||
| everyone | - | X | - | - | - |
| interested/affected | X | - | - | - | X |
The Law on Civil Procedure (N.N. 53, October 1991) is a major authority on such matters. As with legal standing in an administrative procedure, Article 77 declares that "a party in a (civil) procedure may be any natural or legal person." That also assumes governmental bodies as defendants in a civil procedure. The recognition of legal standing, however, is determined by special material laws applicable in particular cases; i.e a special interest test is necessary.
An exception is stated in Article 156 of the Law on Obligations (N.N. 53, October 1991). Anyone may place a demand for another person to remove the source of hazard or danger threatening to cause significant damage. The lawsuit based on this provision - also called an "ecological lawsuit" - features as actio popularis since the legal standing therein is assigned even to persons who are not directly affected by hazardous activity. Usage of this option against industrial polluters still presents a sophisticated legal problem in demonstrating that the damage is "significant," i.e. greater than the benefits of the hazardous activities.
In October 1997 the Croatian National Parliament passed both a new Criminal Code (N.N. 53, October 1991) and new Law on Criminal Procedure (N.N. 53, October 1991). Starting with the material law, the most positive novelty in comparison with previous versions of the Criminal Code is the inclusion of an entirely new chapter on criminal offenses against the environment (Chapter XIX).
The criminal offenses contained under that chapter are Pollution of the Environment, Endangering the Environment by Noise, Endangering the Environment by Waste, Importing Radioactive or Other Hazardous Waste in the Republic of Croatia, Endangering the Environment by Devices, Spreading of Animal and Plant Infectious Diseases, Production of Hazardous Animal Drugs, Negligent Veterinary Aid, Illegal Hunting, Illegal Fishing, Torturing of Animals and Devastation of Forests (Articles 250-261).
According to the Law on Criminal Procedure, charges may be initiated only by an authorized prosecutor. Thus, the criminal offenses prosecuted ex officio fall under the domain of the state attorney, while the private prosecutor is competent with regard to offenses based upon a private lawsuit (Article 2). Since all criminal offenses against the environment are prosecuted ex officio, and handled by the state attorney, the role of private persons or NGOs in environmentally related criminal matters lies in the initiative to submit a report to that office. Pursuant to Article 171 and 172, any citizen or legal person has a duty to report the criminal offense.
Since both laws entered into force on January 1, 1998, there is no such litigation yet recorded. However, serious and well-organized approaches to these new opportunities by NGOs should lead to positive outcomes in the future.
Since submitting to an arbitration procedure is exclusively a matter of the parties' free will or a previous agreement, the issue of legal standing is irrelevant.
The role of The Constitutional Court of Croatia in environmental matters should be examined with reference to:
The Law on Constitutional Court (N.N. 13, March 1991) does not list citizens or NGOs among the persons or bodies authorized to request actions emerging from the court's duties mentioned above. However, they have a right to propose that the authorized body should undertake such action.
Any person (including citizens and NGOs) is authorized to submit a constitutional lawsuit if it holds that a decision by a judicial, administrative or other governmental body violates their constitutional rights. This remedy is possible only after all regular legal methods have been exhausted.
In cases where a public official fails to enforce laws or is the wrongdoer himself, the party whose right or interest has been violated has the opportunity to challenge such actions within the regular appellate procedure as provided by the Law on General Administrative Procedure.
Since the Croatian legal system does not provide special regulations on legal standing against polluters, that issue must be considered within the legal standing provisions of administrative, civil or criminal procedure which are applicable therein.
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | X | -/X | X | X |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | X | -/X | X | X |
The attempt to obtain relevant statistical data on the status of environmental cases requires human and financial resources beyond the scope of this research. Informal data obtained by the Ministry of Justice, officers with both civil and criminal archives of the court in Rijeka and certain judges show an extremely small percentage of environmentally related cases (the estimate is not more than one percent).
Although some lawyers and firms handle cases that fall into the domain of environmental law, these are almost exclusively individual (private) civil cases, mostly dealing with harmful emissions or other forms of nuisance.
An exception is the civil litigation in which the plaintiff, NGO "Green Istra," sued the power plant "Plomin" for harmful emissions into the environment. The plaintiff is represented by a well respected private lawyer.
Under the surface of these seemingly efficient provisions, the real power of ombudsman is largely diluted by the lack of enforceable legal tools. The Article 7 of the Law on Ombudsman states that "the ombudsman warns, notifies, proposes and gives recommendations." It follows that the authority of the ombudsman lies in initiating certain proceedings before the governmental administrative bodies, or in supporting citizens in their efforts to realize their rights. The ombudsman has neither the competence to decide on merit nor the right to undertake any legally binding intervention.
Actual practice shows that environmentally related cases are rarely being brought before the ombudsman. The percentage of these cases cannot be estimated at more than one to two percent. In one such case, a group of citizens asked for an opinion concerning the building of the power plant "Plomin II." In another, citizens have pointed out certain irregularities in issuing the location permit for a fast food restaurant that causes harmful emissions.
