Chapter 7: Hungary
SANDOR FULOP
The word "everybody" signifies a general human right in question that is not restricted only to the citizens of the country. Under a broad interpretation, this provision indicates international responsibilities, especially in connection with global environmental damage.
The constitution again addresses environmental rights in Chapter XII "Basic rights and responsibilities," Article 70/D: "Everybody living in the territory of the Hungarian Republic has the right to the highest possible level of physical and mental health. The Hungarian Republic ensures this right by organizing labor safety, administering sanitary systems, ensuring regular training and protecting the natural and built environment."
A widely used methodological serial for municipality clerks in its second volume deals with the environmental municipality ordinances. First it discusses the environmental programs and summarizes the typical elements of them. The typical elements of an environmental program are:
Environmental ordinances are based on the local environmental programs and give the detailed rules of the authority's measurements in the above-mentioned topics. They also describe the rights and responsibilities of the local dwellers in maintaining the clean and orderly status of their vicinity, and they outline the rules for using public territories and maintaining green spaces. Because municipalities are entitled to make violation of the rules a punishable offense, municipal ordinances usually contain several criminal descriptions, too. The fines, which usually range from HUF 1,000 to HUF 5,000 (USD 5 to 25), are not in themselves a big deterrent, but the moral force against committing a petty offense could be a useful tool for protecting the local environment.
In the same article, Paragraph 3 states that an act regarding the openness of data of public interest can be passed if it receives a two-thirds majority approval by the presenting representatives.
Such a general law on access to information exists: Act LXIII (1992) on the protection of personal data and on accessibility of public interest data (hereafter termed ATV).
There is also specific legislation on access/provision of environmental information. According to Act LII (1995) on Environmental Protection (Article 12, Paragraph 1), "Everyone shall have the right to acquire knowledge about facts and information on the environment; thus, in particular, about the state of the environment, the level of environmental pollution, environmental protection activities as well as the impacts of the environment on human health."
Hungarian law does not give a definition of environmental information. However, there are two possible ways to derive a legal definition in practice. One of them is too theoretical and too general, so administrative decisionmakers usually do not accept it. This is a deduction from the general definition of the environment found in Article 4 of KVTV, which defines the environment as soil, air, water, fauna and flora, artificial environmental elements, all the parts of them and all systems, processes and structures of them, too.
The other, more practical option is to start from the definition of the scope of KVTV that is found in Articles 2 and 3. Using the logic that KVTV, as the main environmental code, shall encompass all the environmental issues, this reasoning concludes that the scope has to do with the definition of environmental matters, naturally involving the definition of environmental information, too. Article 3 (Paragraphs 1 and 2) includes mention of radioactivity, mining, energy, forests, built environment, soil, fishery, transport, catastrophe control, regional planning, gaming, water management, waste management, dangerous substances, nature protection, animal protection and animal health care, plant protection and plant health care and monuments.
Conditions for Obtaining the Information
Generally, anyone is eligible to receive public information and/or environmental information in Hungary. There are no personal conditions imposed by any of the major regulations dealing with the disclosure of information. These regulations include KVTV, Chapter I, "Gathering and Providing Information and Publicity"; Chapter V, "Environmental Information System and Provision of Information"; Chapter VII, "Environmental Protection Administration"; and Chapter VIII, "Citizen Participation in Environmental Protection."
The principle statute of ATV (Article 19, Paragraph 3) directly refers to unconditionality: "The authority shall grant access for anyone to the data of public interest processed by it."
Information on state administrative proceedings provides clients in a legal case the absolute right to inspection of documents, according to Act IV (1954) on General Rules of Administrative Procedure (hereafter termed AE), Chapter II, "Inspection of Documents" subsection. However, Article 42, (Paragraph 2) of the AE places some restrictions for other people concerned.
Although AE uses only the term "inspection of the documents," this also means access to information. Here we can lean on the general principles of the administrative code, amongst which we can find the Principle of Cooperation, which stipulates that the authority and the client has to cooperate in fulfilling the tasks of the administrative procedure. In practice this means that the administrative officers are obliged to give the necessary enlightenment for those clients who have problems in interpretation of certain documents.
In the case of a contradiction between ATV and the AE, the provisions of AE prevail. Additionally, in environmental cases, environmental protection NGOs have the legal status of a client, according to KVTV (Article 98, Paragraph 1). Under the provisions of AE, this allows them free inspection as well.
It is essential in the legal practice of document inspection that it is not restricted in time only to the term of procedure but that it is accessible until the documents are sorted out from the archives.1
Finally, a draft ordinance about the accessibility of environmental data already signed by the Minister of Environmental Protection and Regional Planning states with general force that relevant data shall be at anybody's disposal without the need to submit reasons or to prove the applicant's interest.
The deadline for settling a request for information is regulated in ATV (Article 20, Paragraph 1): "An application for access to data of public interest shall be granted in an intelligible form by the authority as soon as possible after being notified, but at the latest within 15 days." This part of the ATV is only one general regulation of access to information.
Once a person gains the status of client in an administrative procedure, his or her rights are determined according to the AE. The AE does not set a deadline for fulfilling a request by a client or by other interested parties for document inspection, but it prescribes a settlement without delay. In other words, if the client submits his or her request personally, it is fulfilled on the spot; if the client inquires in writing, the reply will be mailed back.
The situation changes in the case of a legal action based solely on a request for information. The deadlines set forth in the AE do not apply because in defining an administrative case, AE (Article 3) states that the material interests of the client must be at stake. The right to information is usually only a procedural right, and so it is excluded from being the basis for an administrative case. On the other hand, it might be interesting to compare how the information service deadline relates to the deadlines of administrative proceedings.
According to AE (Article 1., Paragraph 1), a meritorious decision shall be made within 30 days from the submission of an application or from the day of the official start of the procedure. A time limit shorter than this can be fixed by any statute, but a longer deadline can only be set by an act or a government decree.
It is also worthwhile mentioning that with the authorization of the AE, KVTV (Article 91) amends the deadline of state administrative proceedings to a maximum of 90 days in cases of obtaining an environmental protection permission or issuing an operation permission.
There is a great difference between the whole process deadline and the information service deadline: while the deadline for administrative information can be extended by the head of an administrative body, the 15-day deadline for releasing public interest data cannot be prolonged.
In Hungarian legislation there is no specified time limit for the authorities to express their willingness to supply information other than the 15-day deadline referring to the settlement of the request. However, if officials are going to deny a request for information, "the applicant shall be notified in writing, within eight days, of the rejection of his application and of the reasons therefor" (ATV, Article 20, Paragraph 2).
The regulations on the form in which data must be provided are written in a general way. ATV (Article 2, Paragraph 1 states): "The applicant, bearing charges, may ask for a copy of the document or a part of it containing the data, regardless of the way of its storage."
AE does not contain definite regulations relating to the form of data, but in legal practice it is generally accepted that information not stored in written form is accessible under the same conditions. Therefore recordings shall be played, a microfilm shall be projected, data entered into computer shall be opened and copies shall be made by using proper technology.2
Hungarian law does not yet mention whether environmental information should be available through the Internet or similar technology. Although there are no such statutory regulations, it has been standard MERP practice for more than a year to post the most important draft bills for which the ministry is responsible on the NGO e-mail network, the Green Spider.
One of the most important and contradictory issues within this question is whether the authorities are obliged to make the real documents available or just the information contained in them. At first glance it would seem a pro-client solution for the authorities to provide the client with the just the requested information; however, in some cases it could result in hiding away important details, too. The only acceptable legal arrangement is when the law ensures access to both the data and the information.
KVTV (Article 12, Paragraph 3) renders making data available and providing proper information coordinative. It is clear if we compare them, making data accessible means to render the real documents, while providing information is additional; i.e. if information is not clear from the documents alone, the information will be explained.
ATV deals with acquiring data of public interest, but the wording does not clearly differentiate between documents and information. The expression used in the subtitle of AE in Article 41 is unambiguous: "Inspection of Documents."
The other related issue is the completeness of the information provided. The formerly quoted general provisions of KVTV, regarded as basic principles, indicate the completeness of the information provided. Article 19 (Paragraph 5) of the ATV distinguishes classified documents from accessible ones. It states that "data prepared for the authority's own use, or for the purpose of decisionmaking" may be kept classified for 30 years after the date of formation. However, the head of the authority can permit access to these data within the restricted period upon request. According to AE (Article 41, Paragraph 3), records of deliberations, votes and draft decisions are not public. On the other hand, based upon the notion of contrario induction, these restrictions suggest that all the documents not specifically mentioned are public.
Refusal to Provide Information
With reference to national interests, there are three types of data that officials can refuse to release:
Despite these restrictions, the allowance for official secrets is an outdated legal institution that mirrors an old view that state authorities are entitled - or even obliged - to maintain an information monopoly. Article 41 (Paragraph 3) of the AE includes an exception to the rule of official secrecy: "Under the pretext of official secret, inspection into or photocopying of such documents cannot be excluded when the decision is based on the merits."
Due to the conjunctive arrangements of the provisions of the Civil Code (Article 81), the mere acquisition of information shall not be deemed as the disclosure of a secret - being legal or illegal - nor the legal publication of the acquired information because of the adjective illegal used in the second conjunctive condition. Publication of data can be made legitimate on the one hand by concrete or general statutory authorization, on the other hand by the subsequent discretion of the court about the lawful interests of those involved in certain cases.
We should also examine how the code of laws handles a situation when a state administrative body simply does not react in any way to a request for information. According to AE (Article 4, Paragraphs 1 and 3), if an administrative body does not proceed in its competence in a data-verification case falling under its authority, a superior authority shall order it to fulfill the client's request within 15 days. With reference to the same article (Paragraph 5), if there is no superior body or if the superior body does not react either, the competent county court shall oblige the body of first instance to take measures.
The Hungarian legal practice is worked out also for those cases in which instead of passing a decision the authority simply informs the client in words or in letter that his or her request cannot be settled. If it happens the governing principle of the supreme court is to apply for legal remedy as if a formal rejecting decision was made. (Standpoints of the Meeting Held in the College of State Administration of the Supreme Court, published in Juridical Decisions 1996/I, Appendix).
In connection with all types of secrets mentioned in ATV, the presumption of the right to access to information exists, according to ATV (Article 21, Paragraph 2): "The authority shall prove that the refusal was reasonable and complied with law."
Informal Guidelines for Agencies and the Public
There are two informal guidelines for officials, which are mentioned later in this report. As concerns guidelines for the public, there is no specific guidance, but the authorities are obliged to give help on case-by-case basis, when it seems to be necessary. It is a general rule in Hungarian law that the clients' procedural motions should not be bound to formalities, and that the actions of the client should be interpreted solely through their substantive content. There is only one general rule that can be mentioned here from the authority's side, i.e. the authority is obliged to cooperate with a client who cannot exactly define the information he/she is requiring. Even in this respect, there is no concrete statutory obligation, but there are some rules among the basic principles of AE, the proper interpretation of which makes giving help obligatory in practice. They are in AE Article 2 (Paragraph 2), mentioning obligatory cooperation and Article 2 (Paragraph 6), by which the proceeding authority has to inform the client about his/her rights and duties.
Specific Institutions/Officials to Provide Information
There is no special information office nor are there such officers in the Hungarian administrative system. The only official person who should be mentioned here is the data protection ombudsman. Article 23 of ATV stipulates: "In order to protect the constitutional rights to protection of personal data and to disclosure of data of public interest, the parliament shall elect a parliamentary commissioner for data protection (called Data Protection Ombudsman)." According to Article 24, "The data protection ombudsman shall observe the implementation of this act and other laws on data processing, examine complaints lodged with him, and ensure the maintenance of a data protection register."
However, nearly all public authorities in Hungary are required to provide information. Article 19 (Paragraph 1) of ATV stipulates: "The person or body performing state or local self-government functions or other public duties (hereinafter referred to as authority) shall, within its sphere of competence, including its management, promote accurate and prompt information for the general public."
Also, as stated in Article 19 of ATV, any private bodies that perform some of the public services would also be obliged to provide information and/or environmental information. However, this question does not have much practical importance in Hungarian environmental law.
Additionally, it is included among the general regulations of KVTV as a basic principle that "users of the environment shall be obliged to provide information - pursuant to the provisions of this Act - in respect to their loading, utilization, as well as posing hazards to the environment" (Article 12, Paragraph 4). However, this general ordinance is detailed by the statute as only an obligation to data-collecting authorities.
The practice of the data protection ombudsman has helped in this respect. In his yearly report, he has taken a positive stand with respect to civil disclosure, saying that no polluter should be allowed to hide behind the legal institutions of commercial or industrial secrets.
Furthermore, the ombudsman issued a special directive at the request of environmental NGOs. In a pilot project, NGOs had requested that all 12 environmental inspectorates separately send them the information about all cases in which they had issued decisions fining the polluters. Only one inspectorate was willing to give this information to the NGOs. The data protection ombudsman analyzed the issue and ruled that this information should be public and open, even if its dissemination could harm the economic and competitive interests of the enterprises (Statement of the Data Protection Ombudsman, No.778/A/1997).
Sometimes business regulations contain clauses that can be used to obtain environmental information, but this is not the case in Hungary, where consumer protection laws lag behind European standards. There are a few business regulations that mandate disclosure of various information to the public, but none of them deal with environmental information. Act XC (1990) on food products has a chapter on "Giving Information to the Customers," but does not mention environmental information. Likewise, Act I (1978) on domestic trade and the Decree of the Minister of Internal Commerce and of the Minister of Industry (No. 2/1984 [III.10]), which gives instructions for use, operation and quality control, do not say anything about releasing environmental information.
If an Authority Does Not Possess the Information
Requesting information is a special "part administrative case" (i.e. a procedural issue, sometimes standing alone), to which the rule of AE (Article 7, Paragraph 1) also refers, saying that if the state administrative organ recognizes that it does not have authority or competence in a certain case, it shall forward it without delay to another organ with authority and competence, and at the same time inform the client about the transfer.
Article 15 (Paragraph 1) also states that the transfer of the request within the administrative system shall not affect the starting point of the administrative time limit. The deadline is determined from the submission of the request and not from the time it is received by the state administrative organ with authority and competence. Therefore, an individual can hand in a request for information at the administrative office closest to his or her home or workplace instead of handing in the request directly to the competent authority, and will still be entitled to receive a response within the allotted time.
Costs of Obtaining Information
According to Article 20 (Paragraph 3) of ATV, "The head of an authority may charge expenses, to actual extent thereof, for the communication of data of public interest. The applicant upon request shall be informed about the amount of expenses in advance."
Point IV in the annex of Act XCIII (1990) on litigation fees, provides for the copy or extract fees. Expenses charged for authenticated or non-authenticated copies or extracts made during the state administrative procedure are HUF 30 for the first page, and HUF 20 for each additional page; there is a HUF 30 fee for copies in a foreign language. The fee for non-authenticated copies is HUF 20 per page; carbon copies of the genuine records are HUF 10 per page, but with a minimum charge of HUF 30.
There are rules about exemption from charges based on the characteristics of the information or of the applicant. ATV contains no rules about free services, but there are several exceptions outlined in the code of litigation. For example, NGOs and foundations are exempt from charges unless they pursued taxable business activity in the year preceding the request for documents (Article 5, Paragraph 1, Points d and f; Paragraph 2). Additional exemptions from charges are detailed in some 30 points in Article 33 (Paragraph 2) of the code of litigation fees.
Data on hazardous waste material collected in accordance with the Government Decree No. 102 (July 12, 1996) can be inspected for free according to the decree (Point VI.8.1), but a fee must be paid for special data or for culling, sorting and processing data. The amount of fee depends on the service supplied. The details of payment can also be found in the decree.
Article 51 of the General Rules of Environmental Protection (KVTV) state that "on the basis of the data collected, the environmental minister shall submit a report annually to the government on the trends in the state of the environment in the country." In accordance with ATV rules, this report is generally public.
The government is then required every second year to submit a comprehensive report to parliament about the state of the environment and the implementation of the National Environmental Protection Program (KVTV, Article 41, Paragraph 3). The National Environmental Protection Program report is supposed to outline the environmental goals and target states to be attained; the relating tasks to be performed, the order and deadline of implementation; the means for the attainment of the goals set, including the indication of the planned sources of necessary funding; and the designation of areas in which special environmental measures are required.
Local authorities must also prepare regular reports on the environment. KVTV stipulates that "municipal local governments shall inform the population about the trends in the state of the local environment as required, but at least annually."
Authorities in Hungary are not required by environmental law to provide special reports on the environment in extreme cases. However, in public health law there are such regulations. According to Act XI (1991, Article 4, Paragraph 3) on National Health Service, "data about environmental pollution and the position of epidemics are open to everybody. The health service is obligated to publish data about environmental pollution endangering life or health, and facts about epidemics shall also be disclosed by the service."
Although regular reports on the environment are compiled and are available to the public, the reports are not always organized in a way that is easily understood. It would be a great help if authorities were required to add intelligible commentary to the published environmental information.
Methods of Dissemination
Public authorities in Hungary are fairly active in disseminating environmental information. The Ministry of Environmental Protection publishes information in the official journal (Gazette of Environmental Protection and Building Affairs). In the spirit of the statement of MERP about the public relations of MERP (published in 1996) the Ministry also joined the Green Spider, an e-mail network that is regularly used by more than 200 environmental protection NGOs and numerous other related organizations. The Ministry regularly posts all the draft statutes for which they are responsible on the Green Spider. The list of draft statutes are made public twice yearly in accordance with the legislation schedule of the Ministry. The Environmental Ministry also operates a public relations office that has direct contact with the population.
The MERP Instruction No. 2/1995 on the Rules and Regulations of the Structure, Operation and Rules of Procedure of the Ministry, regulates communication with the press as well. Article 56 in the Rules and Regulations adds arranging press conferences and publishing newsletters, films and publicity materials to the duties of the cabinet bureau. The article also requires the whole ministerial network to inform the cabinet bureau about the events concerning the public interest.
In the process of EIA, public notice about a preliminary prepared environmental impact statement will be sent by the environmental inspectorate to the notaries of a settlement and of the neighboring local governments, who will set them forth by posting them for 30 days or by any other locally accepted means. After the submission of a detailed study, the inspectorate will publish the data referring to the public audience of it either in a local daily newspaper or in a national daily newspaper according to the impact area (EIA Regulations, Articles 7 and 15).
Electronic Means of Dissemination
As mentioned previously, there is no legal requirement for officials to distribute information electronically. However, the Hungarian Ministry of Environment has been relatively active in disseminating information in this manner. There is no direct legal obligation to do that, but, as we have seen, the related MERP Statement urges the Social Connections Chief Department to do so. Concerning websites, the Hungarian Government, as a whole has a home page. MERP has got a section within this, which is moderately developed.
Nongovernmental Information Centers
The primary nongovernmental information resource in Hungary is the previously mentioned Green Spider electronic mail network. This network facilitates information exchange with the authorities, especially with the MERP, and the 200 or so participating NGOs use it as an internal communication chain. However, although much information is flowing on the channel, the network cannot be called a true information system because it is not systematized or structured and information can only be gained on an ad hoc basis.
Another important rule in connection with the private sphere is Article 49 (Paragraph 4), which states: "The costs of data provision, as specified in legal rules, shall be borne by the party obliged to provide the data concerning the impacts on the environment."
Natural persons and legal entities can both be required to provide relevant data to the authorities (Act XLVI [1993], Article 8, Paragraph 2). Natural persons pursuing economic activity can also be obligated to provide data relating to environmental pollution (Article 8, Paragraph 5.4). The general rules of data collection can be found in Act XLVI (1993), while detailed rules of statistical data collection can be found in the National Statistical Data Collection Programs that come out in the annually published government decrees.
However, the KVTV lays out a more concrete framework for public input. Article 97 (Paragraph 1) states that citizens are entitled to take part in procedures concerning the environment, but this Act grants full rights only to begin procedures and to notify authorities. According to Article 97 (Paragraph 2): "Everyone shall have the right to call to the attention of the user of the environment and to the authorities the fact that a hazard is being posed to the environment or that the environment is being damaged or polluted. Upon the notification made in writing with respect to the above, the organ with powers shall, in addition to taking measures, provide an answer on the merits before the deadline." The deadline is 30 days, according to Act IV (1957) on the General Rules of State Administrative Proceedings.
NGOs are granted greater opportunities for involvement. According to KVTV (Article 98, Paragraph 1): "Associations formed by the citizens for the representation of their environmental interests and other social organizations not qualifying as political parties or interest representations and active in the impact area shall be entitled in their area to the legal status of being a party to the case in environmental protection state administration procedures."
The legal status of being a party naturally includes full entitlement without any proof of further interests. If an individual person can prove, in accordance with the provisions of AE, that his or her rights or lawful interests are concerned, he or she can also gain the legal status of a party to the case (AE, Article 3, Paragraph 4).
Hungary has complicated rules regulating referenda. Act. XVII (1989) on Referendum and People's Initiative sets forth substantial rules for national referenda, while Act LXV (1990) on Local Municipalities contains the same guidelines for the municipal level. The new Act C (1997) on the process of election regulates the procedural issues for both levels of referenda. This multilevel regulation, along with the sophisticated rules, reflects the government's aim to make this already expensive legal tool even less available to the public.
A national referendum can be organized to reinforce acts passed by the parliament or to bring any decisions which belong to the scope of authority of the parliament, especially determining principal issues of legislation (Act XVIII [1989] Article 5, Paragraph 1). Some issues are exempt from referendum. These include state budget decisions, central taxes and fees, conditions of local taxes, personal issues and international responsibilities not including the acceptance of future international responsibilities. On the other hand, it is mandatory to organize a national referendum to alter the constitution (Article 6, Paragraphs 1 and 2).
A national referendum can be initiated by the president, the prime minister, at least 50 members of parliament, or at least 50,000 citizens. If the number of initiating citizens is more than 100,000, the parliament has no discretionary power in the referendum issue. That is an important procedural issue, because in this case the people initiating the referendum are also entitled to give the wording of the referendum questions (Article 8, Paragraph 1; Article 10, Paragraph 1).
A local referendum can be initiated on all the issues belonging to the scope of decision of the local municipal council, except the budget, local taxes and personal issues (i.e. nominations). It is mandatory to organize a local referendum in order to unify or dissolve municipalities, to form common municipal councils or to settle any other issues determined by municipal ordinance (Article 46, Paragraphs 1 and 3).
The local referendum can be initiated by at least one-fourth of the council members, by any council committees or by a group of local citizens that make up at least 10 percent but not more than 25 percent of the population. A local referendum can also be initiated by any local NGO.
As we can see from the above description of the basic rules of referenda, environmental issues are in principle open to referendum on both national and local levels.
National referenda are rarely initiated, and there has been none in the past several years. Local referenda are used more frequently, and their subject often deals with environmental matters. There are several examples from the recent past, among them:
Referenda in Hungary are binding. A national referendum is binding in the normal sense that once a reinforcing type of referendum is denied by voters (i.e. voters are asked to approve a law and they don't), the law cannot be carried out. If a referendum calls for legislation to be enacted, the decision of the public binds the Parliament to carry it out (Act XVIII [1989], Article 5, Paragraph 2). Similarly, a local referendum binds the municipal council to carry out the stated action (Act LXV [1990], Article 48). There are no privileged groups as concerns voting in referenda, but as we could see earlier, MPs on a national level and local NGOs are in a better position when initiating referenda.
Right to Initiative
Hungarian law contains entitlements for people's initiative, too. Only citizens can take advantage of this entitlement on either the national or local level. On the local level there is an additional condition that only those residents who have a right to vote in the given municipality can participate in a people's initiative in the area (Act XVIII [1989], Article 18; Act LXV [1990], Article 45).
On the national level, a group of 10,000 citizens can force the parliament to discuss a topic, and a group 50,000 can initiate a discussion that does not allow any discretionary power to the parliament (i.e. the parliament must discuss the specific case). A local initiative requires five to 10 percent of the citizens, but the exact percentage is determined by each municipality in its own local ordinances. Any local initiative requires the local council to discuss the specific case involved.
There is no limitation that prohibits initiatives about environmental issues.
People's initiatives have low practical importance in Hungary because recent activity has shown it is easy enough to collect the necessary signatures to carry out a referendum, which gives the people more power than a simple initiative.
| CASE STUDY: The Gare Waste Incinerator |
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The Gare case is beyond doubt the largest undertaking of the public to participate in environmental decisionmaking in Hungary so far. The case revolves around a large hazardous waste deposit of halogen (chloride content) materials in 62,000 vastly corroded barrels near Gare, a small village in southern Hungary. The owner of the waste, Budapest Chemical Co., got the residents and local leaders to agree to plans for a modern, high-tech incinerator to be built on the site. Originally the leaders of the surrounding villages (Szalanta, Bosta, Szava, Turony) were convinced as well, but the elections of 1994 changed the situation. The residents of Szalanta had made it clear before the election that they did not approve of the incinerator and that the Gare waste was one of their major concerns. An unknown private entrepreneur named Zoltán Dunai was elected mayor, and Dunai began to fight against construction of the incinerator. Electing Dunai was the first successful motion of the public in the Gare campaign. It soon became clear that Dunai was a fortunate choice. He enlisted the Hungarian Green Alternative Party and the Austrian Green Party to help him professionally and financially. The Green Alternative Party advised Dunai to ask EMLA, a public interest environmental law firm, to represent them. Since then the battle has raged on. The city of Szalanta and its partners won on the first administrative level (local inspectorate), lost on the second administrative level (chief inspectorate), and then won again on the first instance of the civil court revision (Pecs City Court). Finally, early in 1998, the second level court (Baranya County Court) ruled that the environmental permit was not a permit in a legal sense and so the parties in the case would have to wait until the end of the next permitting process, after which time they could appeal only against the building permit. This ruling upset everyone, including the investor, who was upset because it further delayed construction of the plant. The case is now at the supreme court awaiting an extraordinary remedy.
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The registered NGOs can select seven of the council's 21 members. This selection takes place at the annual meeting of the environmental movement; however, the representatives are usually allowed to remain at their posts for several years as long as the NGOs are satisfied with their work. The other 14 members of the OKT include representatives of industry and representatives of the scientific community, who are appointed by the Scientific Academy.
Representatives of the public (i.e. NGOs, science groups, craft unions and trade unions) participate in committees dealing with environmental protection in other places, too. According to the MERP Decree No. 20 (Article 4 [April 23, 1983]) on the regulations of administering and investing the National Environmental Fund, the recommendations of environmental NGOs shall be taken into consideration in the distribution of the fund, and in accordance with Article 6 (Paragraph 1) of the decree, a representative of the independent environmental NGOs shall be present in the committee deciding on tenders.
Furthermore, with regard to the MERP Decree No. 10 (Article 12, Paragraph 2 [September 28, 1995]), which was passed for the implementation of Act LVI (1995) on the environmental product fees, the environmental NGOs can have representatives serve on each expert committee set up to distribute the different product fees (i.e. fees collected for fuels, tires, refrigerators, packaging material and accumulators).
National environmental, nature conservancy and animal protection NGOs can also delegate a representative to the boards of trustees for the independent public broadcasting utilities, according to Act I (Article 56, Paragraph 1, Point J [1996]), on radio and television, publicly known as the Media Act.
In the Hungarian system there are few regional level decisionmaking bodies. One important set of local bodies are the regional planning committees, which have NGO representatives in them, too.
Nearly all Hungarian environmental NGOs can have access to the membership of these bodies. Any NGO has the right to nominate environmentalists to one or more government committees at the annual meeting of Hungarian environmental NGOs.
Once on the committees, the NGO members have equal voting rights to the other participants coming from the government, science or business sector. However, no veto right is ensured for NGOs in the present regulation of the work of the committees.
This partnership between NGOs and government is ongoing and has had positive results in several cases.
For example, the government recently initiated a large restructuring program for several administrative offices, including the regional environmental inspectorates. The first plans called for the inspectorates to be grouped under an overall umbrella authority where environmental concerns would have been suppressed by the interests of development and financing. Later the number of inspectorates would have been cut from 12 to seven, which would have meant a significant cut in financial and human resources for environmental protection. Both plans were stopped by OKT.
Another priority issue for OKT is environmental criminal law. After a lengthy negotiating process within the committee, OKT issued requests to the Minister of Justice to consider an amendment to Articles 280-81 of the Criminal Code, which deal with environmental crimes. The committee also sent a request to the head of the supreme court asking the court to issue an official interpretation of the present law. Both requests were received well, and both high-level state offices are working on the OKT initiatives.
Furthermore, according to General Rules of Administrative Procedure, (Article 42, Paragraph 1, Point c), "the state administrative decision shall involve in its reasons actual circumstances stated and the accepted evidences upon them, as well as the presented but disregarded evidences of the client and the reasons of disregarding."
It is not clear, however, how often this ability for the public to influence decisions is used in practice. A nationwide survey of EIA practice is currently under way, and preliminary results show that the public can afford participation in less than half of the cases. In most of the cases that do have some level of public participation, the participation usually entails one of the neighbors attending a public hearing to find out if the plans can be changed to eliminate the possible pollution or disturbance that would be caused to his or her own property. These "participation" cases usually target nothing more than financial compensation for the actual damages the residents suffer. Only in one to two percent of the EIA processes is the participation in favor of the environment in a broader sense.
Although there are no other administrative law processes in the Hungarian law in which such public participation rights exist, the standing rules for environmental NGOs are liberal enough, and this makes it possible in practice that environmentalists, as clients, have a similar say in cases other than EIA.
The results of the EIA survey show that final decisions do not reflect those complaints which were made during the public hearings in cases where the complaints referred to only individual harms. Quite contrary to this, the influence of public participation in cases where the public represented broader environmental interest could be evaluated as quite substantial but not always more successful. This point can be illustrated by the two biggest public participation cases in Hungary, the Gare Incinerator case and the Zirc De-Laquering Factory case (see Case Studies).
The results of efforts to stop the Gare incinerator and the de-laquering plant in Zirc highlight the most outstanding obstacles to successful public participation in environmental decisionmaking in Hungary. The most powerful limitation is the lack of environmental awareness in society. This explains why investors can successfully push economic development interests ahead of environmental concerns, and also why the courts tend to overlook environmental arguments in favor of economics. In addition, the overwhelming majority of public participation is restricted only to the narrowest private interests. As previously explained, the people themselves are mostly concerned with their property and are not showing higher level environmental awareness than the representatives of business or the authorities.
In accordance with AE, Article 3, Paragraph 4, those who are concerned with a case on an economic or social level are qualified as a client. In connection with this question, the Municipal Court of Pecs declared in its judgment (No. 2 P. 21. 839/1996/36) that in environmental protection cases those economic and social impacts shall also be examined which were caused by environmental changes stemming from the activity.
Associations formed by citizens for the representation of their environmental interests and other social organizations not qualifying as political parties or interest representations in their areas, as well as professional interest representations about the issue they represent, can request to give their opinion any time without a deadline. This provision is based on KVTV (Article 98, Paragraph 3), which regulates public participation in decisionmaking in general.
The form for giving information is outlined only in the EIA procedure, in the EIA regulations, Article 7 of EIA. According to this article, the environmental inspectorate shall send all the applications and the preliminary study to the municipal clerks according to the location of siting, and to clerks of the neighboring municipalities, too. The inspectorate must make a short description of the activity which will serve as the basis for notification of the public. The notification also contains information about where the full text of the application can be seen and a warning that written comments can be made up to 30 days after the publication of the notice.
The ongoing survey of EIA practice has shown that the inspectorates and the municipal clerks fulfill their responsibilities in all cases, according to the requirements of the EIA regulations. The short description of the project is sometimes too technical, but at any rate, even in these cases the notice is enough to alert the public.
| CASE STUDY: The Zirc De-Laquering Factory |
|---|
Another environmental case with strong public participation is the case against the Zirc De-laquering Factory. Zirc is a small township in a picturesque valley of the Bakony Mountains. The uncovered karst soil on the majority of its surface makes the area especially sensitive to environmental pollution coming from the air or waters or coming into the soil directly. The concept of a de-laquering factory is of an environmental origin, too. Faulty painted metal tools, i.e. painting devices put in the way of paint sprays, are often handled as hazardous waste. In addition to the loss of the tools, the owners are faced with the headache of disposing of them. Delaquering solves both problems: it cleans the hazardous chemicals off the tools and renders them useful again. A Hungarian-German joint venture to refurbish these tools decided to take advantage of an additional convenience: by opening the de-laquering plant in Hungary, they would be subject to the less-stringent Hungarian air emission standards. Not having to include the electrofilter and smoke-washing tools required under German law would save the company 40 percent of investment costs. In 1993, the plan for the de-laquering factory became known. A group of local residents began collecting signatures to stop the plant, which had already began operations in a rented facility and therefore bypassed the building permit procedure. Soon afterward, the local group formed an association, got registered and received some funds from the Okotars Foundation in Budapest. This enabled the group to undertake other nonformal action, so they organized a peaceful large-scale demonstration against the factory on its site. The case prompted a complicated legal debate about the building process. The residents argued that de-laquering involves burning paints that are second class hazardous waste because of their heavy metal and halogen components. As such, the regulations on EIA would require an environmental impact assessment be carried out before the issuing of a building permit. Since there had been no EIA, they argued, the building could not be legally operated. Meanwhile, the company argued that de-laquering is not hazardous waste burning but instead is "heat-handling of materials requiring special attention." This argument did not appear especially strong. Still, the company continued investing money in building up equipment and renovating the building, and the company hired a prestigious expert company to analyze air emission samples. It was no surprise that the private expert's analysis rated the air emissions as excellent. The company then used these results to argue against the environmentalists, saying that the group was working against the environment because they wanted to stop an environmentally friendly investment in favor of the healthy handling of painted metals. The company also pointed to their investment of millions of dollars and argued that they should not have to suffer a loss as a result of "unproven allegations." In the end, the court accepted the company's arguments, and the plaintiff's action was dismissed. Unfortunately, this case shows the double nature of the civil courts in Hungary in dealing with supervision of administrative decisions. Originally, their task would be to guard the due execution of the rules of administrative law. But at the same time, they are civil law courts, which deal with equity and measure the interests of the parties while trying to find the best balance of them. It is usually impossible for the faint whining of an environmental group to stand up against the vast interest of a several million dollar investment. The case is now at the supreme court, but the environmentalists do not attach much hope to an extraordinary remedy. On the other hand, there is one promising feature of public participation: it never ends. Local groups realized that one tool was not successful, but because they live close to the plant, they keep fighting. The residents now plan to install simple devices to measure the air emission on their own, so they can continue to fight the plant using the company's own methods.
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Public participation in policy and lawmaking is a big topic. We survey the three main areas of it in Hungarian law and then add the practical experiences.
Act XI (1987) on legislation gives the general rules of all the legislative acts. This circle of norms differs from the Western European and especially from the US terminology, because in the Hungarian system the general norms of the government and the ministers - except the policy, strategy like acts - counts as "legislation." On the other hand, even if the parliament decides upon it, those acts which do not contain definite legal responsibilities, obligations or entitlements cannot be called legislation but only "other tools of ruling the state."
Chapter II of the Act contains the general rules of legislation. Article 18 (Paragraph 1) stipulates that before bringing a law into force, social-economic structures, civil right concerns, possibilities to resolve social interest conflicts, possible effects of the regulation and the conditions for implementation have to be examined, with help of the latest scientific results. Article 19 prescribes that "the citizens - directly or through their representative organizations - shall participate in preparation and forming that legislation which reaches their life-relations." Article 20 takes this a step further, saying: "Executive organizations, social associations and trade unions should be involved in preparation of such legislation which concerns those interests and social relations they represent." Furthermore, the Act regulates some more practical, procedural issues, too. According to Article 22 (Paragraph 2) the Minister of Justice, who is responsible for setting the legislative program of the government, has to ask for the proposals of the NGOs, chambers, municipalities amongst other bodies of the state structure. Articles 27 and 29 ensure the right to NGOs and professional chambers to give their opinion on the draft legislations which fall into the circle of their interest. The Act warns that the deadline for giving opinions shall be established in a way that gives enough time for consideration for both sides (Article 31). It is an important detail question that together with the main legislation the draft of the executive rules shall be sent to the participants, too (Article 32). Article 37 (Paragraph 2) specifies the right for NGOs and chambers to initiate legislation and adds a procedural kind of guarantee that the proposal shall be sent to the president of the parliament and to the parliamentary committee which has authority in the given issue. Finally, as it is rendered by Article 43, if an NGO realizes that a rule either for drafting a statute or legislation is infringed, it can turn to the government to take measures.
The Act on Legislation used to contain a subchapter, titled "Social Debate," which regulated public participation in even more detail. This subchapter was abolished soon after the new government started its operation in May 1990.
These general rules of the Act on environmental fields are accompanied by the special rule of KVTV (Article 98, Paragraph 4), according to which all the ministries shall send those items of their legislative plan which are connected to environmental protection to the Ministry of Environment, which in turn has to publish it annually in the Ministry's Official Journal.
It is a special kind of legislation which determines the levels of natural protection upon a clearly geographically-determined region. For highly protected and nationally protected areas the environmental minister issues a decree, while for locally protected areas the municipality council passes an ordinance (Article 24, Paragraph 1) of Act LIII (1996). According to Article 25 (Paragraph 1) anyone can initiate this kind of legislation. However at first sight it is the discretionary decision of the Nature Protection Directorate to start the preparation for the legislation or to fail to do that. We do not know of practical case yet, but we would argue that although it is clearly a legislative issue, the preparation of the legislation belongs to the executive branch; seeing that there is a client interested in the case, and the decision will concern the client's rights and obligations in the future, the Administrative Procedural Code (AE) should be used. According to this, the initiator has the right to appeal the decision and at a later stage of the process he/she can turn to the independent court to decide the case.
The same may apply to the preparation process itself, where the directorate shall organize a public hearing and shall invite the initiator and all the persons or organizations whose rights or responsibilities are concerned with the issue. Our interpretation dictates that a nature protection or environmental protection NGO which works in the relevant area shall be definitely considered as someone whose responsibilities and rights are concerned.
In the Hungarian legal system, land use issues are separated from Environmental Impact Assessment issues, although, naturally the environmental viewpoint has to play a certain role in land use planning procedures.
Act LXXVIII (1997) on Forming and Protection of the Built Environment (Article 9, Paragraph 2, Point a) stipulates: "During the preparation of local building regulations and regional planning it has to be ensured that the concerned citizens, NGOs and professional chambers can express their opinion. To this end the aforementioned parties have to be notified about the plans. In the notification there has to be established 1) who the concerned are, and 2) the aim and possible effects of the plan, in order to enable those concerned to put forward suggestions, comments." Paragraph 3 of the same Article prescribes that 45 days shall be given to the NGOs to form their opinion. Paragraph 4 obliges the mayor of the municipality to organize public hearings with participation of all the above mentioned parties. After the hearing the mayor has to prepare the minutes, in which all the opinions have to be involved, plus the reasoning for not accepting any of them. After this preceding the final draft of the plan has to be exhibited for a one-month inspection for the public. Paragraph 7 contains the legal guarantee for complying with these public participation rules: the plans must not be accepted by the municipal council until the public participation requirements are fully met.
In all cases, where municipal ordinances are in question, a special and general way of legal remedy is rendered to the participating public. The general one is the constitutional court according to Act XXXII (Article 1, Point b [1989]). Anybody can turn to the court stating that any legislation is anti-constitutional, taking in consideration that the Hungarian constitution contains both the rights connected to a healthy environment and the rights of public participation. The shortcoming of this possibility is that the Hungarian constitutional court is highly overwhelmed, so that the processes often take three or even four years. In addition to this, the court has a discretionary power to undertake or dismiss a case. Up to now there are only a few cases in which the constitutional court has explicitly dealt with environmental questions.
The special legal remedy is the county administrative office which ex officio examines the legality of the ordinances. If the office finds the ordinances partly or wholly contra legem first it calls the attention of the municipality council to cease the non-compliance with the higher level legislation. It is mandatory to convene the council again on the issue in question, but naturally it is the municipality's prerogative to leave its legislation as it was. In that case the office turns to the constitutional court for revision of the ordinance. This legal remedy for the public has even more uncertainties than the previous one. The county administrative office itself is naturally not bound by the request of the public, and might decide not to deal with the case.
Hungarian environmental NGOs and citizens frequently use the procedures ensured for them in the building law. In the past the regulation - substantially similar to the recent one - was quite vaguely formulated and this led to many debates. Many cases were heard in which the public was only listened to formally, and the decision on regional planning served exclusively the development interests. The new regulation might bring some changes in this situation; however, until the underlying social arrangement is changed, no one should expect dramatic amendments. The municipalities are struggling with financial difficulties, so they are eager to have as much development on their territory as possible. Since it is the municipalities themselves who finally decide on development plans, the public manage to prevent the sale of their land in only a few cases. For the same reasons, Hungarian environmentalists can neither create a real partnership with their respective municipalities nor establish contractual connections for environmental professional expertise.
There is a much more encouraging picture at the national level. We saw the advantageous regulation of KVTV, and the Social Connections Chief Department of MERP also does a lot to reach NGOs in legislative issues. The result is that practically all large environmental pieces of regulation which followed the basic framework regulation of the Environmental Code (KVTV) in 1995 had massive public participation. The only problem is the uncertainty of what is counted to be environmental. Other ministries, such as public health, water management, agriculture, industry, etc. are quite reluctant to acknowledge that some of their legislation should undergo the public participation processes prescribed for environmental legislation. Very frequently this happens only at the last minute, as in the case of a Ministry of Finance draft Act on the privatization of small forests. NGOs could only access the information informally, so that they were late in the process. At that stage they could only turn to the constitutional committee of parliament asking to halt the legislation process because of inconsistencies with the rest of the legal system, namely with KVTV, the Nature Protection Act, the Forestry Act and the State Budget Act itself. Fortunately, the committee handled the case with the necessary consideration of environmental interests and allowed the representatives of the environmental NGOs to present their case in parliament at the last meeting of the committee before the final vote on the draft. Finally the green representatives convinced the constitutional committee that the new proposal did not fit into the legal system and that it could even be called anti-constitutional, so that the bill was revoked.
Using the survey of the status of their environment, local communities in small regions (i.e. centered on a city of 30-50,000 dwellers) running the LEAP project will be able to find priorities in the protection of their immediate environment. Since the status survey is already a result of broad cooperation of local interest groups, residents, authorities, small and medium-sized industry, agriculture, education and science, the priorities coming out of this process have a great political weight. Again we have to see the reversed logic of public participation in connection with LEAP projects: not the public wanting to participate in the decisionmaking but the public actually doing it.
Openness of Parliamentary Committees
There is no legal requirement for the parliament or the parliamentary committees to make their sessions open to the public. However, some committees, especially the environmental committee, regularly organize open days on which they allow the public to visit their meetings. On such occasions the representatives of the public are usually allowed to address the committee meeting, not just observe it.
Since the rules of participation in the work of the committees are not regulated by law, in sporadic cases the public may be able to lobby there. One example of this success, also mentioned previously, is the case of the small forest privatization amendment, which took place in the summer of 1997. The Ministry of Finance submitted a bill according to which the last remaining forest plots smaller than 10 hectares could have been privatized. Other cases had shown that privatization could be lethal to the forests; the new owners have neither the expertise nor the willingness to manage their forests. Instead, they want to pull as much as possible out of the forests as soon as possible. In the case of the new amendment, some environmentalists asked the constitutional committee of parliament to have a say in the process. The environmentalists were allowed to submit written comments and to add verbal explanations during the committee meeting. The environmentalists successfully convinced the MPs, who decided to take the bill off the parliamentary schedule.
In addition, some environmental inspectorates (for example the Environmental Inspectorate of the Eszak-Dunantul area) have also created lobby lists. The inspectorates notify all those NGOs on the lists about the beginning of certain state administrative procedures which concern the given NGOs' special scope of activity.4
Every year some 15-20 civil servants from environmental inspectorates, nature conservancy management, the state attorney's office, etc. take part in the postgraduate course for training environmental lawyers at the ELTE University Faculties of Law and Political Sciences. Although the curriculum of this training is more generally the environmental law as a whole, part of the course work covers public participation.
Act LXXXIII (1992) on the National Environmental Fund (Article 38, Paragraph 1, Point c), on certain separated state funds provides that the National Environmental Fund can be used for purposes including the following: Environmental research and development, education, teaching, propagating knowledge, and, according to Point e in the same paragraph, for improving society's attitude toward environmental protection and nature conservancy.
The Central Environmental Fund (KKA) receives all or most of several types of environmental fines and environmental product fees collected by the authorities throughout the country. The KKA has direct and indirect support facilities for the environmental NGOs. In 1996 the foundation donated HUF 25 million (USD 200,000) to the green environmental movement, and in 1997 the figure rose to more than HUF 140 million (USD 800,000). To distribute the funds, the NGOs selected a committee of the country's top environmentalists and developed a transparent but still simple process of application, donation and reporting back.
Although they collect a percentage of the various environmental fees collected on their territories (usually 35 percent), local municipal environmental funds are seldom available to NGOs. The only way for NGOs to obtain these funds is to set up an independent public body in conjunction with the municipal council in order to solve a specific environmental problem in the area. In such bodies, which may take the legal form of a foundation, the municipality gives the financial resources while the NGO usually ensures the expertise and the manpower through voluntary work of its members. This type of public body was successfully created in Solymar village in Pest County.
Although the framework exists, this last provision does not really work in practice. Among all the municipal reports coming to the ombudsman (about a third of the municipalities met their obligation to report), there are about 700 requests each year for data of public interest, of which about five are denied. The majority of the state administrative bodies have not actually sent the data even in response official demand. In 1995, the Ministry of the Interior, the Ministry of Justice, the Ministry of Foreign Affairs and the Ministry of Finance registered about 6,000 applications for data of public interest, 116 of which were rejected.
There are other legal possibilities available in case of infringement of participation rights. If a formal resolution was adopted in connection with the participation or client's rights, the general legal remedies are available, as written in AE, Chapter VII; they are appeal, supervisory measures, judicial revision, state attorney's measures and nullification. However, it often happens that the state administrative body does not react at all to the complaint of the undesirable client. That is why the latest amendment of AE was passed. This is Act XIV (1997), upon which the supervisory authority shall order state administrative bodies that do not respond to do so, and if a decision on the merits is not adopted within eight days, the client can turn to the supervisory authority to take action. Also - with respect to the amendment of AE as well - the client must be notified by the organ in words or in a simple letter if his or her request cannot be performed. Therefore, the State Administrative College of the Supreme Court worked out a viewpoint of general force for these cases (published in Judicial Decisions, January, 1996). According to this, a decision in the form of a letter cannot be considered as a final decision and legal remedy can be pursued. The client may ask that an orally notified decision be put down in writing, and if it is not delivered the client can appeal or commence an action. The authority providing legal remedy will ask the body to send the written decision.
Finally, as it is rendered by Act XI (Article 43 [1987]), on Legislation, if an NGO realizes that either a rule for drafting a statute or legislation is infringed, the NGO can ask government to take measures.
Because the position of someone requesting information is rather strong according to the regulations of Hungary, there are not really any court cases in this respect.
During its three and a half years of operation, Hungary's only public interest environmental law firm, EMLA, has seen fewer than 10 cases in which an authority denied access to information. The authorities involved in such cases belonged mostly to the water management administration, for example in the cases of the Dejtar Dam on the Ipoly River, the Bos-Nagymaros recultivation case in Domos village, or the Maria-Valeria Bridge on the Danube between Hungary and Slovakia. There were similar problems with the Road Construction Authority, for instance in the M1 motorway concession case. All these cases were highly political, so the authority felt a strong inclination to exclude the public. In all these cases a simple letter listing those rights to information granted by the laws was enough to convince the authority to hand over the requested information and then to ensure public participation as well. In one water management case the NGO received theoretical support from the attorney general's office. This was a letter in 1995 with a short analysis of the definition of client found in AE, and it concluded that NGOs whose responsibilities are to protect the environment should have the clients' position in administrative cases.
The various rights to administrative standing are shown in Table 1.
| 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 | X | X |
| interested/affected | - | - |
With regard to the broad entitlement of NGOs, the recent court practice seems to move backward. While the legal system acknowledges the standing of NGOs, the practice has been to restrict participation to the narrowest sense in environmental issues. For example, in a building permit case, the environmental group can successfully complain about the noise and traffic the new building will trigger, but it cannot effectively attack other substantial shortcomings - for instance the structure being built on improperly balanced soil or the number of the planned parking spots being too few, etc.
A final administrative decision takes considerable time in the Hungarian system because of the numerous levels of legal remedies. In building permit cases, a first decision can be appealed (60 days on average), while the second decision (120 days to issue) can then be appealed at the administrative law court (court process may take at least a year). The first instance court process can then be appealed again (half a year, at least). In other words, an investor can be forced to wait at least two years to receive a final permit. This appears to be a good bargaining position for the NGOs, but in practice the investors do not wait until the end of the process; they usually start the operations illegally right after receiving the first instance building permit.
In information cases, ATV ensures direct access to the court process, which is an expedient one - the first instance decision is returned within a week. The second instance final decision would be ready within another week.
| 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 | - | X |
| interested/affected | X | X | - | - | - |
NGOs |
|||||
| everyone | X | X | - | - | - |
| interested/affected | - | - | - | - | - |
Formally, in all administrative cases the plaintiff is the administrative body according to Article 72 of AE; however, these cases in substantial legal sense are among the clients.
In the Hungarian system (and many other continental legal systems) there is no well-developed concept of division of powers; in other words, there is no direct court control over whether the administration fulfills its responsibilities. However, looking at it another way, this type of control is not prohibited, either. In fact, the new environmental code, KVTV, contains a clause that could be interpreted to hint in that direction. Article 99 states: "In case a hazard is being posed to the environment or the environment is being damaged or polluted, organizations are entitled to intervene in the interest of the protection of the environment and to request the government organ or local government to take appropriate measures falling under its powers or to file a lawsuit against the user of the environment."
Continuing in this line, a negative response from the administrative body could be interpreted as a decision and then the normal way of legal remedies could continue. No such case has been reported yet.
As for the civil courts, there is a special provision in the Civil Code (Act IV [1959]) that allows a case to be brought against an employer if an employee causes damage to somebody (Article 348, Paragraph 1). A special case of this responsibility exists when the employer is an administrative body. Then, not surprisingly, the conditions of the responsibility are restricted: "For damage caused by administrative measures, compensation can be sentenced only if those who suffered damage had exhausted the regular remedies or if the damage would have not been possible to avert through regular legal remedies." Needless to say, there are very few cases in practice based upon this possibility.
According to the Criminal Code of Hungary (Act IV [1978]) only natural persons can be the subject of criminal proceedings.
Finally, any citizen can file a motion in the constitutional court against parliament, the government, the municipal councils or other bodies that have failed to fulfill legislative responsibilities or have passed unconstitutional legislation. According to Act XXXII (Article 48, Paragraph 1[1989]), on the constitutional court, "Anyone can turn to the constitutional court if his constitutional rights were infringed through unconstitutional laws in any individual cases and he has already exhausted his other legal remedies or those were not open to him."
If a public official fails to carry out the law, the only possibility is to turn to his second level authority. According to Article 4 (Paragraph 1), this higher authority must order the official to take the necessary steps to carry out the law. If the official does not obey, the second level authority must either nominate another authority to act, or it must solve the case itself (Paragraph 2). Naturally, labor law actions against the official can be brought, as can criminal action in the most severe cases.
| 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 | - | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | X | - | - | - |
Civil court is where individuals and business enterprises should try to resolve their arguments. In environmental cases, the legal basis for this is Article 445(Paragraph 1) of the civil code, which ensures strict liability rules so that "Those who run activity with elevated danger shall pay all ensuing damages. They are exempt from responsibility only when the damage was caused by an outside, unavoidable factor. These rules shall be used in connection with activities dangerous to the environment."
As concerns the NGOs, they have an extra possibility provided by KVTV (Article 99), which states, "In case a hazard is being posed to the environment or the environment is being damaged or polluted, organizations are entitled to intervene in the interest of the protection of the environment and...to file a lawsuit against the user of the environment." In this case, "the party to the case may request the court to enjoin the party posing the hazard to refrain from the unlawful conduct (operation); or oblige the same to take measures necessary for the prevention of the damage."
For administrative bodies there are additional legal tools. Act XX (Article 85, Paragraph 2 [1991]), on the competence and functions of local governments and municipal authorities, generally enables the mayors, who have an environment and nature protecting function, to suspend activity of servicing plants inducing hazardous noise and vibration levels. In the case of air pollution, mayors have the right to restrict or suspend the hazardous activity of a company performing services or manufacturing (i.e. any companies) or to order them to use other energy agents. Activities endangering natural resources under local protection can be temporarily banned for 30 days, and the deadline can be extended once.
Government Decree No. 21 (Article 8 [June 2, 1986]), on air protection contains similar provisions in connection with non-servicing activities.
Act LIII (Article 78, Paragraph 1 [1996[), on nature conservation states that activities seriously damaging or endangering protected natural resources can be restricted, suspended or banned in national nature conservation areas, and the notary has the right to proceed the same way in locally protected areas.
Government Decree No. 102 (Articles 33 and 34 [July 12, 1996]), on hazardous wastes says the environmental inspectorate can take a range of extraordinary measurements in connection with hazardous waste. Besides restricting or suspending activities, it can bind, in certain cases, enterprises to temporarily take over hazardous waste if they have an appropriate storage unit to stock it or equipment which renders it harmless.
Finally, Article 63 of the AE stipulates that the decisions of the Environmental Protection Authorities related to all these measures shall be declared self-executing regardless of appeal.
According to Act XCIII (Article 5, Paragraph 1 [1990]), on charges, all NGOs enjoy entire personal exemption from dues. This favor is granted to them according to Article 5 (Paragraph 2), unless they pursued a business activity in the calendar year preceding the procedure causing the assessment of charges, or their undertaking was connected to the scope of activity determined in the by-laws and it did not result in tax-paying obligation.
EMLA services are free unless direct real estate value issues are at stake in cases (less than five percent of the total). For advisory services for public authorities, EMLA charges the same fees as average foreign consultancy firms.
In addition to EMLA, there is one NGO that provides legal advisory services. There is also National Environmental Fund support for creating a countrywide network of advisory services (the Ecoservice network), whose employees will receive legal training and will maintain continuous connections with the already existing EMLA. This office will take over those cases which cannot be solved with help of the local ecoservices nor with the help of "long distance" legal advice.
In addition we attach some information about the Hungarian Constitutional Court. Although both the best environmental civil lawyer, and the best environmental administrative lawyer of Hungary have a place in the court, the court itself shows a low level of environmental law activity. Between 1990 and 1995, the court brought only four decisions in environmental matters, of which three stated that infringement of the constitution had happened. Considering the court received altogether 8,655 requests for rulings and decided in 3,011 cases, the occurrence of environmental rulings is very rare (0.1 percent). Even if we add the 13 public health cases (5 positive decisions) the total occurrence is still only 0.5 percent.
