Other international documents include:
There is no specific law on access/provision of information, though the Law on State Secrets (1994) deals with some issues of access to information, as well as other laws.
Similarly, there is no specific law on access to/provision of environmental information. Instead, access to environmental information is addressed by a number of different Belarusian laws. For example, according to the Law on Environmental Protection (Section 2, Article 5), citizens of Belarus have a right to request and receive comprehensive and reliable environmental information on the state of environment and on measures undertaken for the protection of the environment. Thus, this law provides the most broad description of the right concerned. The Law on the Sanitary-Epidemiological Well-being of the Population (Articles 9 and 13) also outlines the right of citizens of Belarus1, as well as for legal entities (i.e. enterprises, institutions, organizations and public associations), to obtain information on the state of the environment and human health. Finally, the Law on the Social Protection of Citizens Who Suffered from the Chernobyl Disaster (Article 11) is the most narrow of the above and guarantees to the citizens of Belarus the right to obtain comprehensive, reliable and timely information on the levels of the radioactive contamination of the territory, foodstuff and consumer goods and on the requirements of the radiation safety regime.
Article 46 of the Administrative Code of Belarus provides for liability of the officials in case of presenting the incorrect or incomplete information on radioactive contamination or other "Chernobyl-related" issues. This provision may, in principle, be used by courts in dealing with similar cases of liability for providing incorrect or incomplete environmental information of different kinds.
There is no legal, formal or universal definition of environmental information; each of the legal acts has its own perspective on environmental information. Precedents and experience demonstrate that information on the state of the natural environment is more readily considered to be environmental information than the information on the activities related to natural environment. Information related to cultural heritage is also difficult to label environmental information.
For example, the Law on Sanitary-Epidemiological Well-being addresses environmental information related to human health. The Law on the Social Protection of Citizens Suffered from Chernobyl Disaster specifically addresses radioactive contamination and related problems.
Conditions for Obtaining the Information
There are no legal limitations on who can ask for environmental information in Belarus. It means that, in principle, foreign citizens can also request environmental information (since, according to the constitution, foreign citizens residing in Belarus have the same rights as Belarusian citizens with some exceptions stipulated by the legislation).
Refusal to Provide Information
The laws directly dealing with access to environmental information do not state any exemptions to what governmental agencies must provide. Other legislation, such as the Law on State Secrets, regulates the type of information that constitutes a state secret and that therefore cannot be made public. A specific list of exemptions has not been published, although Article 6 of the Law on State Secrets specifies that the following information can be considered as a state secret:
Article 7 of the same law states that information cannot be classified as a state secret if withholding the information would endanger the safety and health of citizens (i.e. not revealing data on emergencies, natural disasters, etc.) or would distort the perception of the real situation in the field of the environment. This article also establishes a public interest test to determine whether the consequences of disclosing a piece of information outweigh the public's right to know. This test in principle can be applied in classifying information as state secrets.
Informal Guidelines for Agencies and the Public
There are no general guidelines for public authorities outlining how to provide information and/or environmental information. Specific state institutions (e.g. "Komhydromet", the Center for Radiation Control, Environmental Monitoring and Hydrometeorology) establish their own internal codes and instructions on providing the information. At Komhydromet these codes and instructions exist as internal documents and are not published.
Also, there are no guidelines published by the state for the public on how to obtain environmental information, although some NGOs have published material on this issue. For example, Ecoline published two leaflets, "How to Organize Citizens' Environmental Monitoring" (Minsk, 1998) and "Ecological Expertise and OVOS: Possibilities for Public Participation in Belarus" (Minsk-Moscow 1997).
Specific Institutions/Officials to Provide Information
There is no special government institution for providing environmental information, but there are departments that deal with public requests and information within existing institutions.
For example, the Ministry of Natural Resources and Environmental Protection has had, until recently, a Department of Information which was changed into the Sector of Information in 1997. The national and provincial sanitary-epidemiological committees also have employees responsible for public relations. The Center on Radiation Control and Monitoring of the State Committee on Hydrometeorology has a 24-hour information service for the public. This provides environmental information only on air pollution and radioactive contamination.
If an Authority Does Not Possess the Information
There is no special legal provision regulating the action of an agency which does not have environmental information requested by a member of the public. The Law on Citizens' Petitions Calls can be applied in this case. Article 4 of the law requires state agencies that do not have competence to answer citizens' requests to refer the requests to the agency that does have such competence within five days and to notify the person who requested the information.
Information Held in Public Registers
There is no legal concept of a public registers of environmental and other official information in Belarus (as open repositories of information to which the public has a presumptive right of access). In principle, citizens can ask for any information which is in possession of the government, but it will be, essentially, left up to the government agency which possesses this information to decide whether and in which form provide it.
Costs of Obtaining Public Information
Information from government institutions is usually available free of charge, except in certain cases. Any charges normally cover only copying, printing or electronic distribution. There is no evidence that charges present an obstacle to the general access to information. The State Committee on Hydrometeorology developed an internal code (referred to herein) by which certain information (such as radiation monitoring data) is provided to the general population without charge. Charges may become an issue in the work of specialized NGOs that perform professional tasks and require large amounts of sophisticated information from government research bodies.
Certain public authorities, including the Ministry of Natural Resources and Environmental Protection and the Sanitary and Epidemiological Committees, are obliged to actively disseminate environmental information. However, the forms of this are not specifically regulated by the legislation. For example, the national State of the Environment Report is published regularly by the Ministry of Natural Resources and Environmental Protection. Also, annual statistical reports are published jointly by several official bodies. This information usually contains a general description of the state of environment and the main trends in it. Additionally, environment-related articles are frequently, though not systematically, published in the media. The Ministry of Emergencies is responsible for actively spreading information and/or environmental information in case of emergencies. The Center for Radiation Control and Monitoring has a system of early emergency warning and control and is responsible for providing this information to the government and the public.
The following state authorities are obliged to provide environmental information in Belarus:
The Ministry of Statistics collects information on emissions, discharges, waste disposal and environmental protection measures at enterprises. The ministry is not legally obliged to provide information, but it does in practice by participating in the preparation of the State of the Environment reports and other publicly available documents.
As there are virtually no private bodies performing public functions, none of them has a specific responsibility to actively provide environmental information. However, virtually all of them are broadly obliged to make environmental information accessible and to supply it to state bodies.
Businesses whose main task is to deal with environmental matters are obliged to provide the public with information on the issues that affect public health and safety. For other businesses, the responsibilities in this respect are not clearly specified.
It should be noted that most of the enterprises in Belarus are state-owned and state-operated. According to the EBRD's "Transition Report 1997" (EBRD, London, 1997, p.154), only 2.4 percent of all enterprises in Belarus had been privatized by January 1997. Hence, the responsibilities for most enterprises are the same as for state organizations with regards to the Law on Environmental Protection and other legislation.
There is no specific legal time frame for supplying environmental information. However, Article 8 of the Law on Citizens' Petitions (Zakon ob obrashcheniyakh grazhdan, passed in 1996) requires state bodies to deal with all petitions related to citizens' rights and legitimate interests, such as requests for environmental information, within one month. If no additional investigation needs to be conducted, such petitions need to be answered within 15 days. The term of answering petitions may be prolonged by a the head of the state body but for not more than two months. There is no separate time limit on issuing the refusal to supply information.
Methods of Dissemination
The form in which information must be provided is generally not specified in the legislation. In practice oral (sometimes telephone) answers or mail letters are the main form of response. The public does not have a right to specify the form of provision of environmental information.
The typical methods of active provision of environmental information by state bodies include:
Typical documents for providing information in practice include the State of the Environment report and the Ministry of Statistics and Analysis reports, which also contain some environmental information (e.g. The Protection of the Environment and the Rational Utilization of Natural Resources of the Republic of Belarus, published by the Ministry of Statistics and Analysis, Minsk, 1995). The State of the Environment Report has been published annually until recently (e.g. Natural Environment in the Republic of Belarus: the State and the Problems, published by the Ecologia research center and the State Committee on the Environment, Minsk, 1992; The State of the Natural Environment in Belarus in 1992, by the Academy of Sciences and the Ministry of Natural Resources and Environmental Protection, Minsk, 1994; Environmental situation in the Republic of Belarus in 1992-1993: Reference Collection, by Ecologia research center and the Ministry of Natural Resources and Environmental Protection, Minsk, 1994; and The National Report on Environmental Conditions in the Republic of Belarus, by the Ministry of Natural Resources and Environmental Protection, Minsk, 1995.)
Public access to documents (representing information in a material form) is not regulated at all, and the relation between information and documents remains unclear.
Electronic Means of Dissemination
There is no legal or other formal obligation to spread environmental information electronically, and environmental information is not provided by the state in any electronic form. However, some NGOs provide environmental information electronically.
For example, Ecoline maintains the Belarus Environmental Web pages, which contain information on the country's environmental legislation, independent environmental news and other environmental topics.
Nongovernmental Centers
Nongovernmental environmental information centers are in an early stage of their development. The only functioning nongovernmental environmental information center seems to be the NGO Ecoline, which maintains an environmental library, a consultation service and an Internet site in Minsk. A similar center is being opened by Ecoline in Brest. Also, the NGO Shkola-2 publishes Belarus Eco-News, which focuses on environmental events and information relevant to the NGO community.
There are no laws governing the proceedings of parliamentary or executive bodies that require public participation. There are also no requirements for public notice or opportunity to be heard regarding decisions by the executive branch. However, participation of this type does occur in practice as described below.
The Law on the Protection of Natural Environment (Articles 5 and 7)2 and the Law on State Environmental Review (Ecological Expertise) provide certain specific mechanisms of public participation in environmental decisionmaking. These are:
There is also a right to appeal to the court s in case of violation of these rights.
Additionally, Article 10 of the Law on the Sanitary Well-Being of the Population states the right of the public to directly participate in the discussion, elaboration and adoption of decisions affecting public health (including environmental matters). The mechanisms of such participation have not been elaborated.
It was not possible to evaluate public participation in the management of non-budget environmental funds as these funds have recently been made defunct.
There is no specific right to referendum on environment-related issues. The general right to referendum is set forth in Articles 73 to 78 of the Constitution, and it applies to issues of highest importance for the state and society, including environmental issues of highest importance. Therefore, environmental issues of "highest importance" could be subject to referenda.
A national referendum can be initiated by:
National referenda in both cases are organized by the president. The decisions made by a national referendum are then signed by the president.
Regional referenda can be initiated by the regional governments or according to the suggestion from not less than 10 percent of the eligible voters of the region concerned. There are no specifically specified privileged groups.
Authorities are bound to call a referendum when the minimum number of signatures has been collected, i.e. 450,000 for a national referendum and 10 percent of the eligible voters for a regional referendum. The decisions made by a referendum can only be reversed by another referendum unless otherwise decided by the body that initiated the referendum.
There have been several referendums in Belarus during the past three years, but none of them raised environmental issues.
Right to Initiative
There is no specific right to environmental initiative; however, citizens of Belarus have the right to initiate legislation if it is supported by not less than 50,000 eligible voters (Article 99 of the Constitution). Environmental issues that are regulated by legal means (i.e. laws) — presumably large developments that are regulated by special legislation — can be subject to initiative.
This right has not been used in practice in recent years.
According to the Law on State Environmental Review (Ecological Expertise), individuals can be included in the committees making environmental decisions. Public organizations are a privileged group. In these cases the individuals of NGOs have a right to vote if this is the method of decisionmaking used by a particular committee.
The practice of including public representatives in State Environmental Review Ecological Expertise Committees has been rare, and no such cases could be identified for the past several years. Referenda on specific environmentally significant projects also can be considered instruments of power sharing; however, this option has existed only in law and not in practice.
In 1991-1993 draft environmental laws were often published and widely discussed. For example, more than 100 comments were forwarded to the Supreme Soviet during the discussion of the 1993 Law on State Ecological Expertise organized in the Ecologia Minska Newspaper.
More recently, there have been cases when NGOs conducted public environmental reviews of draft environmental legislation and draft policies. For example, the Minsk Ecological Council analyzed draft laws on air protection and submitted comments to the appropriate committee of the Parliament. The draft was modified as a result.
Several environmental NGOs (the Association of Environmental Teachers, the International Academy of Ecology, etc.) participated in discussion of the draft concept of Sustainable Development in Belarus. In April 1998, a roundtable for discussing the National Environmental Action Plan with national and local NGOs was organized by the National Sustainable Development Bureau.
Another example is the discussion of the position of the Belarusian delegation to the Working Group on the International Convention on Access to Environmental Information and Public Participation in Environmental Decision-Making, organized by the Association of Environmental Teachers and other NGOs, where the Ministry of the Environment and representatives of the National Assembly took part.
Going one step down on the hierarchy of environmental decisionmaking, we discover that there is no sound legal basis for public participation in land-use and territorial planning. However, in practice such participation does sometimes occur. For example, in developing the Minsk Integrated Environmental Scheme and integrating it into Minsk General Development Plan, a number of comments of Minsk Environmental Council, an NGO, were solicited.
At the level of making decisions on individual projects, according to the Instruction on the Order of Conducting SER, (Ministry of Natural Resources and Environmental Protection, 1995) developers of certain types of projects must investigate and document public opinion. SER expert committees should take that opinion into account when making a decision on a proposed activity. The procedure is not well-defined. A privileged status is enjoyed by those NGOs that are able to organize so-called public environmental reviews (PERs). When a public environmental review is conducted, its recommendations should be taken into account, according to the Law on the State Environmental Review.
Additionally, citizens and NGOs can demand that decisions on construction or operation of environmentally dangerous facilities be repudiated, according to the Law on Environmental Protection and the Law on Sanitary-Epidemiological Well-Being.
Public Environmental Reviews are not often used in practice because of lack of resources of NGOs and citizens' groups.
However, there have been documented cases when NGOs conducted PERs of draft environmental legislation and draft policies. For example, the Minsk Ecological Council analyzed draft laws on air protection and submitted comments to the appropriate committee of parliament. The draft was modified as a result. Also, several environmental NGOs (the Association of Environmental Teachers, the International Academy of Ecology, etc.) participated in discussion of the draft concept of Sustainable Development in Belarus.
Although there is a general requirement for officials to take public comments and opinions into account when making environmentally significant decisions, there is no clear regulation as to the extent to which public sentiment must influence the decision. There are no statistics regarding how often public comments have influenced an administrative decision. The common problem is that the public learns about a decision after it has already been made and, thus, is unable to influence it.
The main limitations of the procedure of PER are the lack of guidelines and money, because according to the Law on Environmental Protection, Article 28, the expenses of PER must be paid by those who initiated it (i.e., individuals or NGOs).
It has been possible for at least one nonformal group to get on the list of groups regularly informed about law and policymaking. The Belarus Environmental Party affiliated with the Minsk Ecological Council (an NGO) is regularly informed about new environmental legislation being drafted.
The decisionmaking processes in Belarus is not transparent. Some processes are somewhat transparent, but these are usually highly politicized cases. Groups with influence, time and money become more privileged in affecting these outcomes.
Openness of Parliamentary Committees
Parliamentary and committee sessions are accessible to citizens and NGOs only in cases where members of parliament decide to involve the public in certain discussion or law drafting. On its own wish, the public is not likely to gain direct access to parliamentary or committee sessions. The public in these circumstances can only observe, not participate in discussions.
About 230 environmental cases are tried in Belarus each year, most of them brought before courts by state environmental bodies. In 1996-1997, five environmental court cases were brought by citizens or NGOs. It is not clear whether Constitutional provisions have been used in arguments in these courts.
Failure to provide information and other unacceptable environmental administrative decisions are subject to the Law on Citizens' Petitions Calls (Article 8). The time limit for making an administrative decision based on a citizens' call is one month, extendible up to two months. Any administrative decision can be appealed against within one month of being made. Appeals and complaints are to be considered within one month, however this term can be prolonged by heads of relevant administrative bodies but for no more than two months.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | x* |
| interested/affected | - | x* |
NGOs |
||
| everyone | - | x** |
| interested/affected | - | - |
* Article 15, the Law on Sanitary-Epidemiological Well-being; the relevant decision must have affected the "environmental rights" of the citizens; it is not stated but may be interpreted that only those citizens whose rights have been affected can appeal against the decision; **The Law on Environmental Protection provides the right of NGOs to appeal against environmental permits issued for "environmentally harmful facilities"; these appeals are considered in special economic courts (khozyajstvennye sudy). |
||
If a public official fails to enforce laws or is a wrongdoer himself, citizens can appeal in court or to the higher administrative body, or they can bring the case to the attention of the state prosecutor, the Committee of State Control or another law-enforcing body.
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative procedure | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | x** | - |
| interested/affected | x | - | x* | - | - |
NGOs |
|||||
| everyone | x | - | x | x** | - |
| interested/affected | - | - | x | - | - |
* The Law on Environmental Protection provides the right of NGOs to appeal against environmental permits issued for "environmentally harmful facilities"; these appeals are considered in special economic courts ("khozyajstvennye sudy); **It is presumed that the NGO can also turn to other courts, up to the Constitutional if the government decision, in their view, violates the law. In these cases the NGOs need to act through the State Prosecutor or law enforcing agencies |
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The question of injunctive relief is considered by the judge or court on the day when the appropriate claim was made and without the need to inform all parties in the case. Once made, the decision is enforced immediately. This process theoretically can be used by the public, but there have been no such cases in practice yet.
Citizens seeking compensation or other relief for damage to their health are not required to pay court fees (Law on State Duty, Article 4), as well as NGOs and citizens appealing against the infringement of rights of other citizens. The main expenses are associated with lawyer fees and expert costs; these may exceed the average monthly salary by 20 times or more.