The right to environmental information is provided for by both the Constitution of the Federal Republic of Yugoslavia (Article 52/1992) and the Constitution of the Republic of Montenegro (Article 19/1992). In nearly identical wording both Constitutions proclaim the right to a healthy environment and provide for timely public disclosure of the present state of environmental protection.
There is no specific law on access and provision of information, but the Law on Environmental Protection of 1996 provides a basis for future regulation on these issues.
The definition of environmental information can be inferred from articles of the Law on Environmental Protection of 1996, but it is not directly defined.
Conditions for Obtaining Information
One of the responsibilities of all ministries and administrative bodies is to provide information to all interested citizens and organizations. A special body, the Secretariat of Information of the Republic of Montenegro, is tasked specifically to gather and publicize information; however, the main activities of this secretariat are currently aimed at promoting the politics of the government.
The duties of disseminating information fall under state agencies only (Article 12/1996 of the Law on Environmental Protection). Private businesses indirectly inform the public about environmental pollution via data submission of state agencies to the information system (Article 26 Paragraph 2/1996). However, there are no time constraints for this procedure. Companies engaged in activities for which environmental impact assessment is necessary are required to submit reports on the realization of environmental protection programs to local authorities. These reports are then submitted to the Ministry of Environmental Protection in regular annual reports (Article 27/1996 of the Law on Environmental Protection). Article 23 of this law provides for the establishment of the registry of pollution at the republic level with the Ministry of Environmental Protection.
Refusal to Provide Information
It is the constitutional right of all citizens to receive a reply when they address state authorities (Article 44/1992 of the Constitution of the Federal Republic of Yugoslavia and Article 33/1992 of the Constitution of the Republic of Montenegro). A competent body is bound to reply within ten days of receipt of the client's petition, initiative or suggestion (Article 2 Paragraph 5/1993, Treatment of Citizens under Rules of State Administration Agencies).
The Law on Civil Servants disallows access to data or inspection of documents when the law or any other regulation defines them as secret (Article 86, Paragraph 2/1991), and the Law on the Principles of Organization of State Administration states that providing information and allowing for inspection of official documents that are defined as a state, military, official or business secret shall be decided upon by the minister or the head of the administrative body (Article 12/1993). Therefore, although the content of particular information is classified as a secret, the most senior officer of the state agency in question has a discretionary right to either allow for or forbid its publication.
Informal Guidelines for Agencies and the Public
In principle, internal regulations, and even general guidelines, do not contain rules on how to provide and how to request information. If more requests for environmental information or information in general were made, those responsible would have to regulate it, or at least some practice would need to be established.
Specific Institutions/Officials to Provide Information
A distinction can be made between information regarding an administrative matter (state agencies are bound to provide insight into official documents to citizens whose legal interests are involved), and an informal request to obtain information which is not regulated. The Law on Environmental Protection states that data on the condition of environmental protection is public and that no one has the right to either hide it or make it unavailable (Article 28/1996).
If an Authority Does Not Possess the Information
There is no regulation in the event of a state agency not having the requested information. The agency is under no obligation to make further effort with regard to the request, but may offer suggestions as to what other state agency might have the information. The situation is completely different when another state agency is the client searching for information. In that case, there is a legal obligation to submit data and information within seven days of the receipt of such a request (Article 79/1991 of the Law on Civil Servants).
Since state administration is organized hierarchically, the republic level minister and the head of a local level administrative body decide nearly all issues, including that of competence of its administrative body. It is the official responsibility of the ministries and other administrative bodies to forward information to the Republic Secretariat of Information, the body governing public relations. This secretariat, as well as other administrative bodies, informs the public of its work by providing information via the media, official publications, projects (usually in cooperation with scientific institutions), organizing public gatherings and seminars. Beside providing information on the strategy and work on concrete projects, public authorities actively disseminate information in case of emergency. When floods in 1993 threatened to spill waste water of the Mojkovac zinc and lead mine into the Tara river, thus endangering the cleanest river in Europe and the Durmitor National Park, the public, both within country and abroad, was alerted. The catastrophe was prevented, recultivation of the land has started, and the return of fauna to the region has also been noticed.
Local administration regulates and organizes environmental protection and activities in case of emergency, and the Republic Secretariat of Information, together with civil protection head office on the local level has special duties aimed at informing and alerting the public.
Methods of Dissemination
Although it is the proclaimed duty of public authorities to actively spread information, in reality, it is very often not performed. For example, the Republic Secretariat of Information informs the public every year that the Government has adopted the annual report of the Ministry of Environmental Protection, but the report itself is never published in spite of the fact that there are no obstacles to its publication.
The system of PRTR is provided for by the Law on Environmental Protection (23/1996) but it is still not functioning, mainly because of the lack of money, but also because the government has other priorities at the moment.
Electronic Means of Dissemination
There is no obligation for public authorities to make accessible any type of information electronically. Only recently the government of The Republic of Montenegro started presenting the Republic on web sites; but this information is very general and does not cover environmental issues.
Nongovernmental Centers
In Montenegro, there are still no special, nongovernmental information centers.
Both the federal Constitution and the Constitution of Montenegro guarantee several basic rights which address public participation (the right of expression, association and assembly, the right to information, the right to petition authorities, etc.).
Since both the federal and republic constitutions are rather new and coordinated (the Constitution of the Federal Republic of Yugoslavia was proclaimed on 27th April 1992, and the Constitution of the Republic of Montenegro on 12th November of the same year), the differences in the formulation of these rights are more the differences of form than of substance.
Both constitutions are relieved from the ideological ballast of its antecedents and were created on the model of classical constitutions of civil democracies. The corpus of civil rights and freedoms comprises: the freedom of thought and free expression of opinion (Article 35 of the federal and Article 34 of the republic constitution), the freedom of the press and other public media (Articles 36 and 35 respectively), the freedom of speech and expression in public (Articles 39 and 38 respectively), the freedom of assembly and public meetings (Articles 40 and 39 respectively), the freedom of political and other association and action without prior permission, under the condition that the association has been registered with the competent body (Articles 41 and 40 respectively), the right of citizens to submit petitions to government administration and receive a reply to them (Articles 44 and 33 respectively), etc.
The right to participate in environmental decisionmaking is proclaimed by the Law on Environmental Protection as a general right and one of the main principles in environmental protection (Article 7, Paragraph 11/1997). Public participation is also mentioned in Article 42 of the same law which states that nongovernmental ecological organizations are a form of organized public participation in environmental protection decisionmaking. However, no instruments for implementation of this right are provided for by this law. If the means of exercising public participation and particularly sanctions against public authorities which ignore or impend the implementation of these rights had been proscribed, this law would have guaranteed some protection to the public.
A Government Decree on Environmental Impact Assessment of 1997 is the first subordinate enactment, out of a number of those that have been planned, passed in accordance with Article 18 of the Law on Environmental Protection which enumerates activities regarding EIA that are within the competence of the republic government. Article 7 of this decree provides for the public participation in the form of a public debate with two conditions: public debate is not obligatory and depends on the decision of the Ministry of Environmental Protection, and may be organized only for undertakings that may have a powerful influence on the environment. The way EIA is regulated gives public officials a lot of leeway to avoid public participation without much backlash. So far, EIA has not been enacted in accordance with this decree, and there are no signs that the issue of public participation shall be regulated in more detail in the foreseeable future.
There is no practice regarding referenda on environmental issues, but according to the Article 1 of the Law on Referendum of 1992 it is possible on all subjects within the competence of the republic or municipal assemblies (Article 1 of the Law on Referendum of 1992). Nevertheless, this mode of public participation is an exception, and there is little possibility that it shall be used in environmental protection decisionmaking. Both referenda that have been held so far in accordance with this law referred to political issues: a republic referendum in 1992 served as a means to the citizens of Montenegro to state whether they wished to stay in Yugoslavia, and a local referendum referred to the change of the capital's name.
The decision to call a referendum is made by the republic or municipal assembly regarding issues of their respective competence (Article 3/1992). The referendum must be held within 13 to 90 days from the day of its calling Article 4, Paragraph 2/1992), or exceptionally within seven to 30 days only if a public debate on the same topic has already been held (Article 2 of the 1992 Law on Modifications and Amendments of the Law on Referendum of 1992).
The results of referenda are binding (Article 1/1992) except if a referendum is called only in order to get public opinion on some issues within the competence of the republic or municipal assemblies (Article 2/1992). The main difference between the republic and a municipal referendum regards the issues which may be subject to referendum and the relative accessibility of its organization on the local level.
The authorities are bound to call a referendum only in case of changes regarding sovereignty, the type of the governmental rule or national borders (Article 2, Paragraph 4/1992).
Right to Initiative
The issue of a right to initiate lawmaking or rulemaking on environment and related issues is not directly addressed by environmental regulations.
It is the constitutional right of citizens and NGOs to present their opinion and propose new solutions to state agencies. In addition to informally addressing state agencies, the right to propose a draft of a law or some other regulation is entrusted to the government, a representative, and at least six thousand voters (Article 85/1992 of the Constitution of the Republic of Montenegro); and Article 95/1992 of the federal constitution provides for a census of thirty thousand voters. In practice, citizen and NGO initiatives are best presented as proposals of representatives, but this stipulates the support of a particular political group.
Article 10a of the Law on Modifications and Amendments of the Law on Local Home Rule of 1995 provides for the right of citizens who have suffrage and are residents of the local community to propose to the municipal assembly the adoption of enactments within the competence of the municipality, and that the number of signatures needed for citizens' initiatives should be determined by the statute of the local community. Since the Republic regulates the sphere of environmental protection in a uniform way, the possibility of implementing this enactment is very limited.
In practice, ideas of individuals and NGOs are often not endorsed, not to mention the fact that they are very often not granted full recognition for their initiatives.
Individuals and NGOs cannot participate in decisionmaking bodies as partners, consequently they don't have a right to vote.
It is a common practice in Montenegro during the process of drafting regulation, experts and scientists are invited to take part in the work of the assembly working bodies, as well as the representatives of professional organizations directly affected by the draft being coordinated. Still, their influence is limited since they have no say in decisions.
Public notification is mainly written or verbal through informal contacts and its content varies from case to case. This method depends mostly on personal connections, so even if it is frequent it is not a rule.
Decisionmaking with regard to environmental protection funds is an example of a transparent process where the public can by no means influence the result. The public is never consulted by the republic assembly regarding financial issues, and in this field decisionmaking is reserved for politicians. There are no privileged groups in this process.
Openness of Parliamentary Committees
Current regulations in the Republic of Montenegro do not provide explicitly for the presence of individuals and representatives of NGOs at their own initiative at assembly sessions or during the work of assembly bodies (boards and commissions). However, it is practiced, though not very often, with the prior consent of the chairman. Although the Regulations of the Assembly of the Republic of Montenegro guarantees the transparency of the work of the assembly (Article 58/1993), in practice, apart from the cases when issues considered a state secret are discussed, the transparency of the work of parliament is realized through the presence of media representatives. There is a practice of organizing a media conference after each session of the republic parliament. Also, it is interesting to mention that sessions of the republic parliament are broadcast live on state television.
The role of individuals and NGOs practically consists of giving advice and is realized during the procedure until a law or another regulation is adopted.
Both the federal and republic constitutions guarantee a general right to appeal against administrative and first-level court decisions. Also, they guarantee the right to address the Constitutional Court to protect constitutional rights.
| 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 |
Although an environmental action provides thorough protection to a large number of people, it remains to be seen how things function in practice. For example, the pleadings of an individual for compensation for damage due to trade of foodstuffs that are harmful for human health leads to the withdrawal of such products from sale and thus protect the interest of an indefinite number of people.
Beside the public prosecutor, it is only the aggrieved parties or their legal agents who have the right to initiate criminal proceedings. Penal legislation, both federal and republic, provide for a number of criminal acts that damage the environment in the broader sense (such as criminal acts against the health of people, general security, some criminal acts against nature, etc.). Article 104 of the Criminal Law of the Republic of Montenegro provides for the criminal act of polluting the environment. Additionally, a draft of a new federal criminal law is being made that is going to replace the existing three laws. It is expected to cover most of the provisions dealing with environmental protection.
The right to a constitutional complaint is founded in both the federal and republic constitutions in the event of violation of constitutionally guaranteed freedoms and human rights by an individual enactment or an action of a state agency (according to Article 113 of the Constitution of the Republic of Montenegro, under the condition that no other legal protection is provided). A constitutional complaint may be lodged by both an individual whose rights have been violated and by an NGO on his behalf within sixty days of the delivery of an individual enactment or execution of the action. Article 44, Paragraph 2 of the Constitution of the Republic of Montenegro provides for the possibility that a party may address an international organization in case of infringement of constitutionally guaranteed human rights. Also, it can directly make a polluter stop the pollution by an environmental action, and compensate for damages.
However, the protection of civil rights in general would be much more effective if there were the institution of ombudsman in the internal legal system.
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | x | - | - | - |
| interested/affected | - | - | - | - | x |
NGOs |
|||||
| everyone | - | x | - | - | - |
| interested/affected | - | - | x | - | x |
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | x | - | - | - |
| interested/affected | - | - | x | - | - |
NGOs |
|||||
| everyone | - | x | - | - | - |
| interested/affected | - | - | x | - | - |
Examples of Court Cases
As to the court practice in the Republic of Montenegro, environmental cases are extremely rare. This is best demonstrated by the fact that not one such case has been registered in the practice of commercial courts (there are two commercial courts on the territory of the Republic of Montenegro), and the same is true of higher, second instance courts. Unfortunately, we were not allowed access to data of the First-Instance Court in Podgorica, in charge of solving criminal and civil environmental cases of first instance. Still, we obtained information on two criminal charges brought by the Ministry of Environmental Protection that the public prosecutor rejected on the grounds of a lack of evidence. The first case, dating back to 1995, was a criminal charge brought against the Aluminum Combine in Podgorica, i.e. against the persons in charge (the general manager and the executive manager) for their failure to take prescribed measures to prevent the pollution of the environment - the Morava River and Lake Skadar - with a dangerous material, masut. This case received extensive publicity since the masut was poured out in the Zeta valley, which is a densely populated agricultural area and the main supplier of foodstuffs for Podgorica, the capital of Montenegro.
So far, no legal proceedings have been instituted with the Ministry of Environmental Protection. One is now in progress with the Ministry of Agriculture, Forestry and Water Management (against the Aluminum Combine in Podgorica). There have been no such cases with the second instance Magistrate Commission in Podgorica. During the research, the author has only found cases of infringement at the Magistrate Court in Podgorica that refer to the trade of foodstuffs that have spoiled, failure to act in accordance with the regulations on obligatory medical examination of those working with foodstuffs, etc.
