Chapter 10: former Yugoslav Republic of Macedonia
KIRIL GJORGOV
Article 55 stipulates that "The freedom of the market and enterprise can be proscribed by law only with regard to the defense of the country, or the protection of nature, the environment and the health of the people."
Article 56 of the constitution states: "All natural resources of the former Yugoslav Republic of Macedonia, flora and fauna, as well as objects and buildings of particular cultural and historical value determined by law are amenities of common interest for the former Yugoslav Republic of Macedonia and enjoy particular protection."
The policy and action are consistent with the Environmental Action Program (EAP) for Central and Eastern Europe, the document adopted at the ministerial conference in Lucerne in 1993. Based on the recommendations in the EAP the Macedonian Government adopted the National Environmental Action Plan (NEAP) in January 1997. The Sofia Guidelines (1995) were one of the essential documents used in the preparation of NEAP. Former Yugoslav Republic of Macedonia agreed on the Sofia Guidelines in October 1995 when the Minister for Urban Planning, Construction and Environment signed the Declaration.
As of the end of 1997, the ministry has done very little to make the Sofia Guidelines well known to the public. The full text of the Sofia Guidelines was neither published in the Official Journal, nor translated into the Macedonian language nor made available to the interested parties. But starting from April 1998 all the international documents concerning the environment as well as the Sofia Guidelines were available at the Environmental Informational Center at the MOE.
The Ministry of Urban Planning, Construction and Environment has issued a formal platform related to the implementation of the Sofia Guidelines. The platform is a small action plan, meant to serve the government in the implementation of Sofia Guidelines in the policymaking process.
The Macedonian representatives who have participated in the drafting of the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters have shown the governmental interest on implementing the Sofia Guidelines.
The Ministry of Urban Planning, Construction and Environment has recently sent the text of the Convention to the interested institutions, and has proposed that the government should authorize the minister to sign the Convention at the Aarhus Ministerial Conference in 1998.
The NGOs have partial initiatives, such as formal recommendations on the draft laws, which are related to the Sofia Initiative. The roundtable on the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters organized by the Journalists' Ecological Center (NEC) and funded by the Regional Environmental Center, is the only example related to the Sofia Initiative. Other NGOs have many different approaches to the Sofia Initiative.
The law clearly stipulates that local self-government is responsible for local development programs regarding construction, local infrastructure, land-use planning and zoning. Local governments have authority over the natural resources in their area and have to ensure quality service regarding water supply, waste water, and solid waste management. The Law on the Territorial Division of the Republic, which introduces 123 local self-government units, provides an important institutional framework crucial to address environmental issues.
The draft Law on Natural Heritage proposes further environmental decisionmaking on the level of the local self-government.
The consumer (i.e. the beneficiary of goods and services), must be informed of risks to the environment and human health, and on protection measures via labeling or other appropriate means.
In the coming draft laws on Environmental Impact Assessment (on Air Protection, on Waste; and on Natural Heritage), there are proposed provisions for accessing environmental information, especially in the EIA procedures. These regulations are still in the draft phase, so the proposed provisions cannot be published until the passing of the law.
There is no specific law on environmental information, but as mentioned below, Article 7 of the Law on Environment and Nature Protection and Promotion states that anyone can be informed publicly or on request related to environmental information. Nevertheless, during the discussions on the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, it has been concluded that access to environmental information cannot be defined only by specific law but with complete reform of the basic laws on public administration and administration procedures. The need for a specific law or at least rules or regulations on access to environmental information is also necessary.
Regarding the general law on access to information, so far there are only discussions at the government level among the ministries and the Secretariat for Information that the framework law on access to information is necessary.
Passive provision of information can very rarely be found in the environmentally related acts. The passive provision of information is in a form which does not correspond to the real right to information. For example, the Law on Environment and Nature Protection and Promotion defines the right on environmental information as "anyone can be informed publicly or by request on environmental information". The Law on Water which was enforced in February (Sl. vesnik na Republika Makedonija No. 07/145/1 [1998]) mainly concerns the usage of water. Water protection is mentioned in a very small part, which leads to the new law on water protection.
The present Law on Water does not contain provisions on environmental information. The environmental legislation is now in the process of being reformed, and so far three environmental laws have been drafted: on Air Protection, on Waste; and on Natural Heritage. It has been expressed that the provisions on environmental information are to be enacted in the above-mentioned laws.
Concerning the programs and plans which are or should be adopted by the government, there is no formal provision on access to information.
A relevant type of information can be considered, which is the monthly bulletin issued by the Ministry for Urban Planning, Construction and Environment, and the Center for Environmental Data Processing within the same ministry. Also the government, through the Secretariat of Information, provides daily information for the public as well as a website on the Internet. The part of the law concerning environmental information focuses on the Center for Environmental Data Processing in the ministry of MOE.
The Center for Data Processing is a separate division from the Ministry of Urban Planning (MUGZE). The purpose of establishing this Center is:
Negotiations have already started for connecting the center with EU-corine and EIONET TELEMATIC. The project for the development of the center is developed by PHARE.
Conditions for Obtaining the Information
The obligation to provide information or environmental information is related to the specialized environmental institutes (such as the Hydrometerological Institute, or Health Institute). They are obliged to provide daily information on the state of pollution or other conditions of the environment.
Concerning private bodies, only those who have sources of pollution are obliged to provide information.
Access to monitoring data is granted only to environmental inspectors. In general, environmental data and information is not available to the public. Regulations on self-monitoring should be developed to make the industries more responsible for their waste discharges and to reduce to the burden on the state budget for monitoring. The self-monitoring data should be available to the public.
Under the Law for Common Administrative Procedure (1987), administrative procedures can be initiated by any citizen, or the organ of the ministry (ex officio). The NGOs representing the public can also be parties in the procedure. After submitting the required materials, the organ of the authorized ministry decides on the submitted request. The organ must issue a decision which can adopt or refuse the request within a period of 15 days. If the organ of the ministry does not reply on the submitted request within the 30 days, then it is considered to have approved the request.
The Ministry of Urban Planning, Construction and Environment, the Agency for Environment Protection and the Environmental Fund, which are a part of the ministry, must also respond to requests for information within a period of 15 days.
The answer to the requested information (if it is requested from the ministry or public management body) has to be in written form. There is nonformal possibility to reply orally. The Law on Common Administrative Procedure relays only written requests in order to follow the procedure. Nevertheless, the organ or the ministry can provide the information orally or electronically but this is not stipulated in the law. Providing information electronically is stipulated by the Program of the Center for Environmental Data Processing at MOE.
The time limits for providing the information (as in any other request) is also 15 days, but if the body cannot provide the information within 30 days, it can be considered that the request for information is positive, so the interested party can ask the reason for the delay.
Everybody has a right to receive information or environmental information. There are no limitations on this issue. In practice they must respond in this period. The period after 30 days is called "administrative hush".
Refusal to Provide Information
The free access to information is guaranteed by Article 16 of the Constitution of former Yugoslav Republic of Macedonia. Also the constitution stipulates everyone's right to be informed in a democratic way, which corresponds to the truth. The body can refuse to provide the information in certain cases, which are state secrets, business secrets and state interests. These exemptions are not explained in detail so there can be possible violations. So far there is no example of not providing environmental information using the aforementioned provisions but it can be defined as an obstacle.
The public interest test is possible and it is used very frequently, especially before referenda, questionnaires, research, etc. The form is used in the local self-government.
Informal Guidelines for Agencies and the Public
There are no general guidelines for the public authorities on how to provide information or environmental information. There are only draft guidelines for providing information in the Ministry of Urban Planning, Construction and Environment, drafted for the purposes of the center for automatic data processing of the environmental data. The center for automatic data processing is incorporated within the program and standards of the EU and PHARE. The draft guidelines will be only for the use of the ministry.
There are no general guidelines for the public on how to request information or environmental information. So far the public has been using the Manual on Public Participation in Environmental Decisionmaking published in 1991 by the Center on Environmental Law and Public Participation and the Regional Environmental Center, as a sort of guideline, and it is very popular.
Specific Institutions/Officials to Provide Information
There is a governmental institution for providing information to the public. That institution is the Secretariat for Information established within the government. It deals mostly with information from the government and the ministries but also with general politics and environmental data. The Secretariat for Information provides daily information for the public as well as a website on the Internet. Everyone may make a request for information to the respective ministry and the Secretariat for Information will reply within a 30 day period.
If an Authority Does Not Possess the Information
If the public authorities do not possess the information, under the Act on Administration Procedures they have to forward the request or provide contacts with the agency which possesses the information within 30 days.
The public authorities are not legally obliged to actively disseminate information, but they do so through the Secretariat for Information.
The most actively disseminated information is that which is related to the work of the ministries and the public authorities. A clear distinction cannot be made between which information is disseminated most actively. About 80 percent of this information relates to EIA, and 20 percent is general information on specific issues (eg. quality of water, air).
The Center for Information disseminates daily information about the daily incidents, fires, accidents as well as information about extreme pollution. Usually citizens use this institution as a place to find information about accidents.
There is a possibility to get on the list of groups regularly informed on law and policymaking. The Ministry for Urban Planning, Construction and Environment disseminates environmental information to every group which is interested by sending the monthly information bulletin. The Hydrometeorological Institute also disseminates information about air pollution to the relevant bodies. There are no legal provisions for the aforementioned, but nevertheless, with establishing the Center for Environmental Dataprocessing as stated in the program, everybody will have the possibility to be on the list for getting information.
The price for the information is specified and equal to the tax of the authority, which is minor. For information which requires additional research, the cost is paid by the person who requests the information.
Methods of Dissemination
The typical methods of dissemination used by public authorities are press conferences and via the Secretariat for Information, as well as electronically. The MOE issues a Bulletin for environmental information as well as providing information electronically. Also, the Secretariat for Information disseminates information electronically.
Electronic Means of Dissemination
There is no legal obligation to spread information electronically except with regard to the Secretariat for Information. Nevertheless, as mentioned earlier, the Ministry for Urban Planning, Construction and Environment is establishing a Center for Processing the Environmental Database and a website in order to disseminate information electronically. The center has five employees and is a subdivision of the Geographical Information Center. One chief executive and five employees are working in the monitoring and issuing of information.
Nongovernmental Information Centers
Businesses are obliged to provide environmental information only if their work can endanger the environment. The provision on environmental monitoring and informing is based on the Law on environment and nature protection and promotion. Greater emphasis should be placed on self-monitoring for some of the large polluters. As part of corporate citizenship some industries are monitoring their discharges (e.g. the lead and zinc smelter at Veles, OHIS in Skopje, JUGOHROM in Jegunovce, the iron plant in Skopje, etc.). In these plants, units have been created to develop environmental management plans for the company and conduct self-monitoring.
There is only one NGO information center in the state. The center is established by the Movement of Ecologists of former Yugoslav Republic of Macedonia and named INDOC Center. They provide information to NGOs and citizens. The center is financed by foreign foundations and the information is from different sources.
The right to referendum on the state level is guaranteed by the constitution, and the right to a referendum at the local level is also guaranteed by the Act on Local Government. The right to referendum on environmentally related issues can be considered to exist, but has not been used yet.
As mentioned above, a referendum on a central level is possible if the required petition of 150,000 signatures is met. Article 73 of the constitution stipulates that the Assembly decides on issuing notices of referendums concerning specific matters within its sphere of competence. The referendum is adopted on the condition that more than half of the electorate voted. The Assembly is obliged to issue notice of a Referendum if it is proposed by at least 150,000 voters. The decision made in a referendum is binding.
The referendum on a local level is possible if 50 percent of the electorate submits an initiative for referendum. Environmental issues which are mostly subject to referendum on a local level are environmental investments such as waste water, sewerage or water supply.
Referenda on the local level are held very frequently, especially for water usage investments. Both central and local referenda are completely binding.
The NGOs cannot participate in decisionmaking bodies as equal partners. The right to veto is guaranteed only to the president of the state.
The parliamentary and committee sessions are not accessible to citizens or NGOs. An NGO can participate in the committee session if it is involved and the aims of the NGO are related to a certain discussion in the committee. In this context, these commissions include experts from outside parliament. The expert bodies assembled may include representatives of nongovernmental organizations. For example, the special Commission of the National Assembly of the former Yugoslav Republic of Macedonia, charged with preparing a draft framework law for environmental protection, consisted of six Members of Parliament, two environmental experts and one NGO representative. This is in accordance with the Act of Parliament.
There is no group which is consulted on law or policymaking. Usually, the policy makers formally consult governmental institutions, consulting companies and occasionally NGOs.
The training which is planned to be provided for the staff of the Center for Processing Environmental Data may perhaps be considered as training in public participation. This training is financed by PHARE.
So far there is no governmental funding for public participation projects.
A new Law on Courts has replaced the older (ex-federal) one (Sl.vesnik 17/79) and it is widely believed that this will improve efficacy of the court system.
The new Law on Courts or the so called Court Constitution defines the court's power as independent, impartial and competent. The law also defines the competencies, organization and status of the courts. The organization of the courts will be on three levels:
The constitutional court is a separate institution established by the constitution.
Concerning the court procedures, the Macedonian legislation provides two basic types:
The civil procedure is established by the Law on Civil Procedure. This law establishes the rules and procedures of the court when deciding on cases of personal and family relations, labor relations, ownership, and other civil relations of persons and legal subjects. According to Article 185 of the above-mentioned law, a civil procedure can be started only by a complaint. The complaint cannot be anonymous and must consist of certain requests along with the suggested evidence. With a complaint it is possible to claim monetary damages based on a rule violation, and to claim the establishment and confirmation of a certain right or legal relationship. It is also possible to claim additional requests (for money and confirming a fact).
If a party in the case is not satisfied with the issued verdict or decision, they may submit an appeal to the appellate court. After the decision by the appellate court is issued, the affected party no longer has the option to submit an appeal and the decision is final. If the party is not satisfied by the final decision, they may submit a request for revision to the supreme court, or a request for protection in accordance with the law to the district prosecutor.
Intervening in an ongoing case in the civil procedure is defined by the Law on Civil Procedure (Sl.vesnik 4/77; 36/77; 6/80; 36/80; 43/82; 74/87; 57/89; 27/90). According to Article 206 of the mentioned law, "A person having a legal interest in an ongoing case to succeed, may join the case as one of the parties." The joint filer may approach an ongoing case until the validity of the decision on the complaint. Every party in an ongoing case may dispute the request to intervene. The court will decide on the request. If it is denied, the individual may not lodge an appeal with the appellate court.
Article 306 of the Law on Civil Procedure states: "The date of summons is open to the public. Only adult persons may attend the date of summons."
Article 307 of the Law on Civil Procedure provides that the court council may forbid presence of the public on the whole case or to the one part of the case if the interests of official, business or personal secret are concerned or because of the moral reasons.
According to the Article 309 of the same Law, against the decision of the court council it is not allowed to lodge an appeal.
The Law on Criminal Procedure (sl.vesnik 14/77) establishes rules and procedures in cases of violating the criminal law. According to Article 287 of the Law on Criminal Procedure, the main session is open to the public. The presence of the public during the main session may be forbidden by the court's decision, based on the petition of the interested parties or the court's opinion that it is necessary for keeping the public order, moral protection, protection of the interests of children or the protection of other basic interests of the community. The court council can allow experts to be present during sessions which are closed to the public.
The constitution guarantees the right to go to court. In all cases it is an individual right.
Usually in cases brought before any court, the parties in the case use the provisions outlined in the legislation. If some matter is not regulated in the partial law, then the parties may use constitutional provisions, or the provisions defined in the international treaties.
The administrative bodies inform the public about their work. They will not give data, as such information would be opposed to the social interests guaranteed by the constitution. The means of informing the public is arranged according to the regulations of the specific body.
According to Article 23 of the above-mentioned law, public management bodies assess the situation of the territories in which they are founded and collect data and information. According to the law the information collected may be used only by the authorized organizations. It is considered official information and cannot be distributed to the public. Inspection is also within the domain of the public management bodies. If the inspection needs to be done by experts in a certain area, it may be carried out by some specialized organization.
Citizens have a right through their local self-government offices to make remarks on the work of the public management bodies if they are not satisfied with it. The remarks are considered by the same public management bodies and they are obliged by law to reply on them within 30 days (Article 39).
Concerning the administrative procedure, it is established by the Law on Administrative Procedure.
NGOs can also be parties in the administrative procedure. In order to invoke the administrative process, a suggestion must be made in writing. After submitting a suggestion, the administrative body is obliged to issue a decision in 15 days. Parties who are not satisfied with the decision may submit an appeal to the Governmental Commission. If the interested party is still not satisfied with the Governmental Commission's decision, it can invoke a process with a complaint to the Supreme Court. Submitting a complaint to the Supreme Court does not delay the accomplishment of the decision.
The deadline for obtaining a final administrative decision is 30 days and the time for appealing is 15 days.
Parties in the permitting process may be individuals, legal subjects or NGOs. NGOs which have a task to protect certain rights and interests of its members have the legal standing to represent a member in administrative proceedings regarding the permitting process, but only with the member's authorization.
| 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 |
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | x* | x | x | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | x* | x | x | - | - |
| *Appeal can be made to the second-degree governmental committee. In case of refusal, there is the possibility to turn to the Supreme Court. | |||||
| 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 | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x | x | - | - |
The following types of action are examples of environmental cases:
No environmental complaints have been brought before the ombudsman to date. If one should occur, he is obliged to accept and answer it.
