Besides those rights which are addressed under access to information, public participation and access to justice in the RF Constitution, Article 42 provides the constitutional right of each person to a healthy environment and covers the damage caused by environmental violations to health or property. Under Article 41 each person has the right to health protection and information on the state of health. Officials are responsible under acting federal laws for the protection of the public from acts and circumstances dangerous to peoples' life and health. According to Articles 15 and 18, constitutional rights and freedoms are enjoyed directly and cannot be abused or limited.
Besides direct environmental rights and obligations, there are other items established in the constitution also relevant to the environment:
In Article 15 (Paragraph 4) of the constitution the principle of international law (conventions, agreements, covenants, treaties) primacy is established, if ratified by the RF and a part of the national legal system. In practice this means that in a case of contradiction between national norms and the standards of international treaties in which the RF is a party, the latter are used.
Two Russian congresses on environmental protection were carried out with relevant resolutions adopted.
The Sofia Guidelines have been published and discussed in specialized environmental periodicals, although this is inadequate dissemination in a country as large as the RF; in the middle of 1997 the Russian ecological newspaper, Green World, devoted an entire publication to issues surrounding the Aarhus meeting, PPC and other pan-European processes.
The concept of RF transition towards sustainable development has been elaborated.
Numerous federal laws and regulations have been adopted which embody some of the Sofia Guideline principles and agreements, including: i) the Federal Law on Environmental Expertise; ii) the Federal Law on GMOs; iii) the new draft of EIA Regulations was elaborated and discussed with the public (the previous regulations, which are still in force, were adopted before the Sofia Guidelines).
Despite Sofia Guideline recommendations for governments to formulate a publicly available index of prices for obtaining environmental information, the Russian Federal Government has still not adopted such an index. Problems of technical provision (i.e. use of electronic equipment) concerning access to environmental information have also not been addressed, due to the extreme lack of budget and extra funds, especially in the provinces.
With the help of Russian environmental NGOs, the draft of Guidelines on Public Participation in EIA and the State Environ-mental Review (State Environmental Expertise) have been elaborated. Unfortunately, there are still no general guidelines or basic principles of public participation, nor has there been an attempt to set forth in the law the definition of environmental information and guidelines of access to it.
There are still no provisions in the law which allow access to justice on environmental issues in order to protect public environmental interests or the environmental rights of citizens. For example, no provisions have been made to ensure that court fees and intermediate bonds are "not prohibitively expensive," and there is no "anti-harassment" provision for environmental activists acting legally. Until now the RF Government has not attempted to comprehensively evaluate the implementation of the Sofia Guidelines, and only at the end of 1997 did such work start in Goscomecologia.
Examples of NGO activities:
Whilst not knowing comprehensively about the Sofia Guidelines, Russian NGOs are still quite active in their attempts to protect citizens' environmental rights, even in the midst of economic crisis.
Several alternative networks on environmental information have been established and they now actively disseminate environmental information among the Russian public. NGOs have become more active in requesting environmental information from public authorities at federal, regional and local levels, for example information on pollution, the state of the environment and health, on natural resource usage, on development and construction works etc. Public monitoring projects are effectively realized in different regions of the RF (Moscow, Saratov, Samara, Nizhniy Novgorod, St.Petersburg and Oblast, Irkutsk, Novokuznetsk, Nizhniy Tagil, Kaliningrad etc.). This information is sometimes used for public environmental expertise (provided by the relevant articles of the Federal Law on Environmental Expertise [December 1995]). Refusals are appealed to the courts more often than in previous years, although not always successfully.
The following have been undertaken by Russian NGOs since the establishment of the Sofia Guidelines:
In 1996, Kalinigrad City Duma adopted its decision to elaborate a special law on radiation safety for the population of Kaliningrad Oblast. In 1997 the Republic of Karelia formulated its draft Law on Environmental Expertise, in which procedures to obtain environmental information by interested legal entities and individuals is set forth. Certain forms of public participation are also provided for in this draft law.
Federal legislation on the aforementioned issues of joint competence is developed and adopted with active participation and in agreement with the 89 RF subjects; regional legislation concerning issues of joint competence must be in compliance with the federal legislation. As for the issues out of the scope of the RF and joint competence, subjects of the RF have sovereignty to adopt their own legislation. In practice, regional legislation compensates for shortcomings in the relevant federal legislation, and is not always consistent with the relevant federal legal norms. Regional legislation is therefore sometimes more progressive, sometimes more regressive than its federal equivalent.
On a local level, environmental competence is regulated by two main laws: the Federal Law on Basic Principles of Local Self- Governance (August 12, 1995) and the Russian Soviet Federal Socialist Republic (RSFSR) Law (July 6, 1991).
Under Article 6 of the Federal Law on Basic Principles of Local Self-Governance and Articles 51, 60 and 71 of the Law of RSFSR, municipal bodies (councils) have competence over local issues such as possessing, usage and maintenance of municipal lands, waters and other municipal natural resources, regulation of municipal planning and development, comprehensive social-economic municipal development, land usage control, planting of trees, monitoring and control over ambient air, forests, hunting and fishing. Municipal councils must inform the population about the environmental situation and report to the special governmental bodies concerning pollution and violations of environmental legislation. These bodies also have power to impose fines for environmental damage.
The list of information classified as state secret is established by federal law. There are also several presidential and governmental decrees which guarantee citizens and NGOs the right of access to information of public interest (legal base for a possible public interest test). In 1992 a presidential order imposed the obligation on all ministries and governmental agencies to publish their regulations concerning citizens' rights and interests in an official periodical bulletin; since 1994 there has been a legal requirement that these regulations cannot be considered legally binding without official registration in the RF Ministry of Justice.
The RF has a specific law on access/provision of information: the Federal Law on Information and Informatization (1995). In September 1997, the draft of the special Law on the Right to Information passed the first reading in the Federal Duma (i.e. the lower chamber of the RF Parliament). Access to environmental information was first provided by Articles 12 and 13 of the RSFSR Law on Environmental Protection (1991), and subsequently in Article 5 of the Law on the Sanitary-Epidemiological Well-Being of the Population and in Article 42 of RF Constitution in 1993.
In March 1997 the Federal Government adopted a decree on procedures of collection and exchange of information concerning population and land protection in emergency situations of both natural and technogenic origin. Many ministries have adopted their own instructions within the scope of their competence (for example, Instruction of the Ministry of Emergency Situations — MES).
The RF has no specific law relating to access/provision of environmental information. However, there does exist a model law on access to environmental information, which was elaborated by the NIS Interparliament Assembly and discussed at its meeting in December 1997. During the period 1991-93 the right of access to environmental information was provided by the RF Law on Environmental Protection (Articles 12 and 13) and the Sanitary-Epidemiological Safety Law (Article 5).
The right to study information (access to "raw" information) is provided in Article 24 of the RF Constitution, and in Article 12 of the Federal Law on Information.
There is no definition of environmental information in acting Russian legislation. The law states only that information on the state of environment and peoples' health (i.e. on sanitary-epidemiological issues, on emergency situations and on pollution and emissions) can never be classified.
Conditions for Obtaining the Information
The general rule set forth in Articles 24 and 29 of the RF Constitution is that if information influences a citizen's rights or lawful interests it must be given to the requester. According to the provisions of Article 12 of the Federal Law on Information, citizens and NGOs (i.e. users of governmental information resources) have equal rights of access, and are not obliged to give reasons for their request to the holder of the information. Classified information is an exception to this.
Requests for information can be directed to the following:
A reply, whether a refusal or the information requested, must be given within one month.
The request to open classified state secret information in the demand of public interest must be answered by the competent official within three months.
There is no detailed procedure set forth in the federal legislation, and so public authorities have broad discretion in defining the details of the information provision procedure. Thus, according to the Federal Law on Information (Article 12, Paragraph 3), the owner or possessor of the information resource defines the procedure (place, time, officials etc.) for obtaining the information. In the case of environmental information, this was, until 1996, the Ministry of Environmental Protection, now known as the State Committee on Environmental Protection (Goscomecologia).
Lists of information and information services, regulations of access to the information resources and databases, are provided for citizens or NGOs free of charge.
Access to original documents must be provided for citizens and NGOs by the public authorities responsible for creating information resources and systems. In accordance with their charters, these bodies are obliged to provide adequate provision of such access.
There are no developed or strictly defined rules for refusal. The list of information classified as state secret is provided in the Federal Law on State Secrets (1997).
Illegal refusal by an official to provide access to information "which has an impact on citizens rights and freedoms," can be appealed if such refusals cause damage. Officials are criminally liable under Article 140 of the RF Criminal Code for such actions. The same applies if an official provides intentionally false information.
According to the provisions of the Environmental Protection Law and several other specific laws, environmental information must be actively provided by the State Committee on Environmental Protection (Goscomecologia), the Sanitary-Epidemio-logical Supervision Committee (currently a department in the Ministry of Health) and the State Committee on Meteorology (Rosgi-dromet). Their regulations and charters give details on the procedures involved.
Local municipal self-governing bodies are also obliged to inform the public on environmental issues within the scope of their competence. They are able to request information concerning the environment from polluters who act on their municipal territory
Under the RF Law on Trade Unions, workers of an enterprise have the right to directly request, obtain and study information on labor and safety conditions. Also, in the case of emergencies, officials of any business entity must not withhold information which could endanger health or life; administrative or criminal liability is provided in the constitution and detailed in the new RF Administrative (Article 41-44) and the criminal code (Article 237, 1997). In all other cases, business concerns are not obliged to provide information and/or environmental information directly to the public, only to the special public authorities responsible for collecting information related to the environment (see above).
The general public has the right to request and obtain information/environmental information in the form in which it exists. However, under Article 24 of the RF Constitution, the relevant public authorities are obliged to provide access only to the information which has an impact on human rights and freedom. This vague provision can be — and often is — interpreted as if public authorities are not obliged to give copies of documents.
Refusal to Provide Information
There are several grounds for refusal to give information:
It is clear that the definition of "secret" information is a broad one, especially where the utilization of nuclear wastes, exploitation of "special objects," and official or commercial information is concerned
Article 139 of the RF Civil Code (1995) states that "information is an official or commercial secret if it has real or potential commercial value because it is unknown to third parties, it has no free access on legal grounds, and its owner takes measures to protect its confidentiality." It is also established that the list of information which cannot be a commercial or official secret is provided in the legislation. In particular, it is necessary to keep in mind the Federal Government Decree (December 5, 1991) which provides a list of information which cannot be a commercial secret. For example, it prohibits the refusal of information on emissions into the environment and environmental pollution. Whereas the RF Constitution (Article 24) and the Federal Law on Information (Article 11) regulate the confidentiality of private personal information (letters, telephone calls, records, archives, etc.).
Analysis of the acting legislation also shows that the public authorities or municipal councils can reject a request for information if it is subject to a preliminary criminal investigation. In this case there is no legal possibility for a public interest test.
However, a public interest test possibility does exist within RF legislation. During recent years a large amount of classified information has been made accessible after pressure from the public, and the legal norms on openness and accessibility of information which affects citizen rights and freedoms has been adopted because of this public interest test pressure. According to acting Russian legislation, governmental bodies must act on principles of openness; therefore, environmental information should never be classified.
Also, according to the above-mentioned RSFSR Government Decree of 1991, information such as violations of anti-monopoly legislation, non-compliance with labor safety regulations, etc. should never be closed to the public. This Decree (Paragraph 3) outlines the passive obligation of administrations of private firms, individual entrepreneurs, high officials of state or municipal enterprises to provide information if requested by legal representatives who are authorized to do so under acting legislation (for example, specially authorized controlling state bodies, investigative or court bodies etc.).
NGOs are authorized to "request for prompt, full and true information on environmental pollution and measures on nature protection" as well as for information concerning peoples' health. (Article 13 of the Law on Environmental Protection; Article 5 of the Law on Sanitary-Epidemiological Well-Being of the Population; legislation on public and non-commercial organizations).
A request may be refused if the information is not in the competence of a governmental body or agency. But according to the provisions of acting legislation, the responsible public authority is obliged to help the public in obtaining the required information.
Though there is a widely declared right for the public to request and obtain information/environmental information, conclusions can be drawn from their implementation in practice. In spite of the fact that a public interest test is possible at the administrative (pre-court) level, public officials who are responsible for declassification of requested information have very wide discretion; taking into account old traditions and practice (i.e. lack of democratic traditions), it is more likely that the public is able to protect its right to access information via litigation procedures (i.e. appeal of refusals to courts).
Informal Guidelines for Agencies and the Public
There are no general guidelines for public authorities on how to provide information and/or environmental information, although there are some general principles outlined in laws such as the Federal Law on Information. Meanwhile, the procedural vacuum is covered by ministerial guidelines such as the Regulations of the Ministry of Emergency Situations.
According to the Federal Law on the Procedure of Publishing and Entering into Force of Federal Constitutional Laws, Federal Laws and Acts of Federal Assembly (1994), it is possible to obtain official information on adopted legislation from the daily federal newspaper "Russian News" (the official periodical edition of which is the first to publish all adopted texts of main legislation). There is also an official monthly compendium on Russian legislation in which all texts of laws, decrees and presidential orders are published. Ministerial decrees and regulations are published in a separate official bulletin. Laws and decrees can only enter into force after publication in these sources. The Federal Law On International Treaties (1995) sets the procedures for the official publication, registration, storage and access to international treaties which are already in force.
The Federal Law on Information (Article 13, Paragraph 4) makes a provision for payments to public authorities for information services, of which there are two variants:
Indexes of prices and lists of services which are free of charge have yet to be established by the Federal Government. There is a governmental plan to elaborate such indexes, in which it is declared that such indexes must be systematically updated by all public authorities, be accessible and available to the public. The Federal Law on Information provides for the financing of information services from the federal budget, and from the budgets of the RF subjects. Those services which are not included in the indexes will be realized on a contract basis between possessor and user.
The Federal Law on Obligatory Copy of Documents (1994) should also be mentioned. This law guarantees access to a free obligatory copy of official documents which must be distributed to public libraries (this includes documents in an audio or video format, as well as electronic editions).
There are no general guidelines for the public on how to request information and/or environmental information, or on the conditions for obtaining information, but some principles have already been described above. The outcome of a request depends on the type and content of the information. For example, in the RF legislation on public associations and non-profit organizations, there is a provision that such organizations have the right to obtain information from public authorities if it is necessary to realize their charters or to fulfill their goals.
Additional possibilities for the public exist in the right of public associations to obtain information during the process of governmental environmental expertise (State Environmental Review), via their representatives (see the Law on Environmental Protection, Articles 13 and 35, and the Federal Law on Environmental Expertise [1995], Articles 3, 19 and 22).
The public holds the right to obtain information in the early stages of siting approval (the RF Land Code [1991], Article 28). Under acting Russian legislation it is the duty of the investor, developer and designer of a project to provide information to the public and organize public hearings. The same principles and legal grounds can be used by the public when requesting information on permitting and licensing, or on the exploitation of acting enterprises.
Though the general principle declared in the Federal Law on Information is that the requester is not obliged to prove his/her interest, an in-depth analysis shows that the formulations of legal norms can be interpreted as individuals having to prove their interest (repeated in many laws in the formulation: "affecting their rights, freedoms or lawful interests," etc.). In practice, public officials often use a limited interpretation of these provisions.
Specific Institutions/Officials to Provide Information
There is no general institution for providing requested information and/or environmental information to the public. In the various ministries, special departments or officials are responsible for public relations.
In recent years the presidential press service and press secretary have been established. These provide information to the general public about the policy and activities of the President of the RF. Presidential decrees or executive orders are officially published in the daily official newspaper "Rossiiskaya Gazeta", and in the periodic Compendium of Legislation of the RF. The Federal Law on Information (Article 13) states that the Presidential Committee on Information Policy must register and publicize all existing information systems.
The Federal Government provides information via its own press service. Governmental Decrees and other types of legislation are published in the same periodicals as presidential orders.
Ministries and agencies such as the State Committee on Environmental Protection, the Federal Forest Service, the State Committee on Hydrometeorology, and the Ministry of Foreign Affairs, have special departments and appointed officials for liaising with the public. The Ministry of Emergency Situations has its own press service and a specially appointed official responsible for the active dissemination of emergency information, according to special interim regulations (July, 1997). The Federal Forest Service also recently adopted rules on providing information to the public.
If an Authority Does Not Possess the Information
If public authorities do not possess the requested information and/or environmental information, they are responsible for obtaining information from other agencies. The Law on Environmental Protection (Articles 6-10) prescribes that governmental bodies authorized in the area of nature protection must provide information to the public and NGOs, and must assist in obtaining it. The State Committee on the Environment has the right and competence to request necessary environmental information from all other agencies, enterprises and organizations, in order to help the requester to obtain information free of charge. Thus, the acting legislation guarantees governmental promotion for citizens and NGOs in obtaining information.
The failure of an authority to provide information may be appealed to the court as refusal or non-fulfillment of the official obligations set by law.
Whilst public authorities should help requesters of information in the ways outlined above, in practice, officials often answer that they do not hold the relevant information, as the procedures are not concretely defined by law.
As already mentioned above, the RF Constitution (Article 42), the Federal Law on Information, the Federal Law on Safety of the Population, the Law on Environmental Protection, the Law on Emergency Situations, and the Federal Government Decree on "Procedures of collection and exchange of information in the area of population protection in emergency situations of a natural or technogenic character" (March,1997), provide for such an obligation, and set forth rules and requirements for public authorities to actively disseminate information on laws and legislation, the state of environment, health, emergency situations, etc.
Administrative and criminal liability of officials in the case of concealing and causing damage by such violations guarantees these obligations and the right of public to be provided with comprehensive and correct information within a given period of time. An interesting development in this area is that since July 1997, according to the Federal Governmental Decree, public authorities are now obliged to inform the public on all accidents involving space ships, rocket launches and landings which could cause any damage to nearby residents.
The institutions responsible for active spreading of information and/or environmental information are as follows:
Goscomecologia is the main federal body in the area of nature protection. All ministries and agencies are obliged to inform the Ministry of Emergency Situations each year (not later than December 1), of all measures undertaken to prevent and diminish the consequences of emergency situations. According to the requirements of the Governmental Decree of 1995, there is an annual state report on population and territorial protection from emergency situations of a natural or technogenic origin. The executive bodies of the RF and its subjects provide the necessary standard information for such annual state reports. During 1994-96, legislation on the safety of the population was adopted which defined a system of measures to protect the population in case of disaster, environmental and technogenic accidents, catastrophes, epidemics and fires.
Methods of Dissemination
The typical methods used by public authorities for provision of information and/or environmental information are:
Electronic Means of Dissemination
Over the last few years more and more databases (including legal databases) have been established by the RF Government, even though under acting RF laws and regulations there are no specific obligations to make information/environmental information available electronically.
Nongovernmental Centers
Few nongovernmental information centers have been established in the various regions of the RF, either in the field of human rights or the environment, although many activities are currently carried out in some of the main universities: Moscow, Yaroslavl, St. Petersburg, Novosibirsk, Khabarovsk.
Another system of environmental control also exists in the RF. In 1992-93 a Governmental Decree on the obligatory registration of toxic substances was adopted. In 1992, under the order of the Ministry on Nature Protection, a federal system of automatic radiation control was established, covering all of RF territory. A system of forest control was also established.
Voluntary schemes such as "ecological passportization" of enterprises and ecological audit, have now evolved in Russia. Voluntarily declaration on ecological safety for industrial enterprises was worked out several years ago, but was not widely used as there was no legal obligation embodied in law provisions. The draft law on industrial safety is still in the process of elaboration.
During the privatization process relevant environmental information also flows from the private sector to public authorities. There are a whole set of special rules and regulations at a ministerial level which regulate this flow:
Article 12-14 of the Law on Environmental Protection also indicates that public authorities and officials have to ensure and help NGOs and citizens to enjoy their environmental rights, and take measures to fulfill recommendations and demands.
Provisions of several other federal laws also have some concrete provisions on public participation:
The Law on Public Associations and the Law on Non-Profit Organizations provide for the public participation right of public associations which hold the right:
At a regional level, laws on environmental protection of subjects of the RF (for example, Adigei Republik, Bashkortostan, Republic of Karelia, Marii El Republik, Northern Osetia, Republic of Tiva, Republic of Saha-Yakutia, Republic of Hachasia, Republic of Chuvashia, Moscow, Moscow Oblast, St. Petersburg, Saratov Oblast) such as charters, laws on referendum and regional laws on self-governance, provide for different forms of public participation in environmental decisionmaking. There is also regional legislation on referenda (for example in Rostov and Perm Oblasts). These acts must be in compliance with the RF Constitution. Unfortunately, their implementation is sometimes not consistent with federal constitutional norms.
Public participation issues are also regulated at a local level; for example, the Moscow law on protection of citizens rights during construction activities (adopted in July 1997), and the Moscow Government regulations on public participation (adopted in January 1998).
The right to referenda on the environment and related issues is laid out in:
The same principles are repeated in the Moscow Law on Referendum (February 14, 1996), which gives the right for referenda on issues of maintenance of city territory ("blagoustroistvo"), but no rights to referenda on emergency measures, health and safety. This limits public participation on environmental issues. Results of referenda are legally binding.
In recent years several crucial referenda on the construction and location of nuclear power stations have taken place in different regions of Russia, and the negative reaction of the population stopped environmentally dangerous projects which had been designed with many violations of environmental legislation.
The President of the RF appoints the federal referendum in accordance with procedures set forth in the Federal Law on Referenda and the Federal Law on Basic Guarantees of Citizens Electoral Rights (1997). In Article 32 of the constitution the citizens' right to referendum, whether national, regional or local, is directly guaranteed. Local municipal councils have the power to carry out referenda, including those on environmental issues (as provided in Article 130 of the Constitution and also in regional legislation). The most difficult problem in this matter is to correctly formulate the questions for referenda so that they are not rejected.
Procedure and limitations of referenda depend on the level of involvement. In some subjects of the RF, 500 signatures are sufficient to initiate a referendum. In any case, the claim to a referendum must be registered with the central electoral committee.
A referendum is not possible during states of war or emergency situations, and also for three months after such emergency situations have ceased.
The following issues can not be put up for referendum at a regional level:
For the two years following the official publication of the results of a referendum, the same questions cannot be put to a referendum.The list of limitations set in this Federal Law (Article 14), is exhaustive and cannot be widened.
In Articles 3/3 and 32 of the constitution there are no limitations on the issues which can be subject to referenda. Although the Federal Law on Basic Guarantees of Citizens' Electoral Rights does outline such limitations: for example, issues of budget, taxation, human rights and foreign policy are not open to referendum. Clearly, there are still many disputed issues in this area,and a need for a well-defined interpretation of the law on referenda. The Russian environmental law NGO — Regional Public Center for Human Rights and Environmental Defense — has started to study the issue with a view to making an appeal to the constitutional court of the RF.
Staging a referendum requires both money and professional skills, which makes them very difficult to organize for the general public, especially when they pertain to the environment. Still, with the growing number of conflicts between economic interests and environmental public interest in modern Russia, citizens, NGOs and local municipal councils are using referenda more and more frequently to settle main crucial environmental decisions. For example, during the last three years there have been significant public attempts to participate in important environmental decisions on radioactive and chemical safety in various regions (Kursk, Kostroma, Perm, Krasnoyarsk, Rostov). In almost all cases, public authorities fought furiously against these public efforts: the authorities either found obstacles to prevent any action or rejected the registration and even the results of referenda.
According to Article 3 of the constitution, referenda are binding.
Right to Initiative
The RF Constitution (Article 33), the Law on Environmental Protection (Articles 11-13, 41) and the Land Code (Article 28) give NGOs and individuals the following rights:
Under Article 104 of the constitution legal initiative only belongs to a limited list of subjects: the President, the government, the federal parliament and parliaments of RF subjects, groups of deputies, supreme and highest arbitration courts, and constitutional court. There is no special environmental initiative at federal or regional levels.
On a local level it is possible for citizens to have some kind of environmental initiative via local municipal bodies of self-governance. This system is only developed according to constitutional provisions (Chapter 8) and the Federal Basic Law on Self-Governance (1996). Procedures of such public initiatives are nowhere laid out in detail, and so it is necessary to use the whole set of different legal norms which are dispersed in various laws and regulations. Some of the procedural points are provided in the constitution, in the Federal Law on Environmental Expertise, and in governmental decrees and presidential orders.
At a regional level, one of the first developed procedures is now embodied in the previously mentioned Moscow law on the protection of citizens environmental rights during construction activities.
One recent and very important legal development is the draft Law on Access of the Public to Environmental Decisionmaking, which was elaborated by the NIS Interparliamentary Assembly. This will potentially be incorporated by the former Soviet Republics into their national laws. Many of the draft law's principles are the same as the draft UN ECE Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters. In other laws, there is no clearly stated obligation on the part of the decisionmaker (i.e. public authority) to seriously take into account public comments.
The "right to be heard" applies to all members of the public who direct their comments to the relevant decisionmaking body. But again there is no federal obligatory procedure to define consultees, or to answer them.
In 1994 the Federal Duma created the Highest Environmental Council at the Committee of the Environment, which functions as a public consultative body. In the Council's rules, the procedure for choosing experts is established. In practice this provision is not used very often. It is difficult for individuals to make the responsible officials listen to their opinion. However, it is possible that the development of local self-governance will create the conditions necessary for the promotion of public environmental activity at a local level.
There are several good examples of leading environmental NGOs participating in the elaboration of the concept of the law on sustainable development in Russia. Goscomecologia has involved environmental NGOs in the public hearings of the drafts of federal programs, and on laws such as the Law on Sanitary-Epidemiological Safety and the RF Water Code. Public comments received by Goscomecologia are registered and put into tables.
Unfortunately there are many examples of officials ignoring public comments, demands or the results of public hearings. Very often public authorities issue permits or licenses, or agree with environmentally dangerous construction, without the obligatory positive conclusion from environmental experts. This constitutes a violation of the Federal Law on Environmental Expertise, which covers the basic principles of ecological safety. Examples are as follows:
The limitations of procedures relating to public comment in decisionmaking are several. Time and money inevitable contributes to the limitations of public involvement, but so too does the lack of environmental awareness of many officials, the lack of democratic traditions (and, therefore, any tradition of public participation), the post-communist mentality of decisionmakers and corruption.
Specialized NGOs (working in areas such as biodiversity, the environment, human rights, etc.) have good non-formal contacts with relevant agencies and governmental bodies, and receive information on a regular basis. Advisory boards (councils) may be formed, consisting of scientists and representatives of leading NGOs, in order to make recommendations (for example, the Public Chamber on Human Rights; the Committee on Information Disputes; the Ecological Council of the Committee on the Environment [GosDuma]).
While there are no rules with regard to lobbying, the procedure mentioned above does lead to the latent influence of interested groups on legislative procedure. Although it should be emphasized that these types of groups do not necessarily reflect real public interest, which can be a precarious situation for the protection of environmental or human rights.
At all levels of decisionmaking, individuals and NGOs are often only informed after decisions have been made. Only one official procedure exists in the RF for the publicizing of decisions made by Federal Parliament; this procedure is established in the Federal Law on Procedures of Publishing and Entering into Force of Federal Constitutional Laws and in the Federal Law on International Treaties. All acts of federal authorities are periodically published once a month in a special compendium. There is a special bulletin for acts of ministries and departments. Russian citizens, foreigners, NGOs and legal entities can subscribe to these editions. The daily newspaper "Rossiiskaya gazeta" is also one of the most up-to-date information sources.
At a federal level, it has recently been decided to publish the working annual plan for the legislative works of parliament, which can be a source of information for interested groups.
In some regions there are local initiatives to publish information on planned activity, although this is not obligatory for public authorities. The only legal requirement investors and developers face concerning public notice about planned activity can be found in Regulations on EIA (1994), but it is very often ignored. There is as yet no periodical source where relevant information on planned environmental decisionmaking processes could be published and widely distributed.
The most common forms of public notification are newspapers, radio, TV — mainly at local and regional levels. At a federal level the public is occasionally informed via TV and radio.
Several councils exist (created by parliamentary committees) for consultation purposes in various subject areas. Also, during the formulation of draft legislation, special working groups are established. Unofficially, some committees have permanent groups of consultants for legislative work.
Openness of Parliamentary Committees
The sessions of parliament and the Environmental Committee are usually open to the public and the media. The only exception is in the case of state secrets or other issues of a confidential nature. Members of the public or NGOs must inform the relevant committee or chamber of their intent to be present at any particular session; they must also apply for passes into the parliament building.
On the initiative of the chairs of parliamentary committees, experts, consultants and public representatives can be invited to attend sessions. The public is able to observe open sessions of the Parliament. Individuals and NGOs are invited to submit comments, although they do not vote. According to Article 101 of the RF Constitution, representatives of interested public associations have the right to attend special committees' sessions. Experts are often invited to such sessions.
There is an Academy of Administration which prepares management staff for low and middle levels of governmental executive bodies, municipal staff, chiefs of departments and ministries.
The Academy also provides special courses for professional improvement of administration skills. These courses are open to the staff of local and central public authorities who already have a university education and some practical experience in public administration. Many specialists from Russian universities participate in the work of the Academy. There is also a special course on ecology and environmental law, which was recently added to the curriculum. Advanced graduates of the Academy of Administration can be sent to study for three to six months in European countries, if there is an agreement with a similar educational institution. A Presidential Order specifically approved a new program of foreign fellowship exchange for young administrators.
However, there is still no public participation training provided or supported by the government. A few attempts have recently been made under the initiative of environmental NGOs.
No governmental funding is available for public participation projects or public participation training.
Denial of access to environmental information can be appealed to the court as a breach of the citizens' constitutional right, under the provisions of Articles 42, 24, 29/4, 41/3, 46 and 52 of the constitution (1993).
Access to justice in general is provided in Article 52 of the constitution. The rights of victims of crime and official abuse are protected by law and the "state guarantees access to justice and compensation of caused damages". According to Article 46/1 "everybody is guaranteed access to court to protect his/her rights and freedoms," and the "decisions and actions (inactivity) of public authorities, local municipal councils and officials can be appealed to the court." Article 46 also states the ability of every person to appeal to international human rights organizations if all possible national instruments of protection are exhausted. Since February 1998, when the RF ratified the European Convention on the Protection of Human Rights and Basic Freedoms (1950), there appears to be a possibility for Russian citizens to appeal to European international bodies (i.e. the Commission on Human Rights, and the International Court of Justice) to protect their violated rights.
Under Articles 46 and 52 of the RF Constitution, each action of an official which violates a citizen's rights or freedoms can be sued in a court. Chapter 24/1 of the Civil Procedural Code details the procedure of such a court appeal. Failure to allow public participation is considered as an unlawful activity on the part of an official or public authority, as it violates a citizen's constitutional right to participate in decisionmaking, and so can also be appealed to court.
The constitution also provides for the right to appeal or sue in cases of other illegal actions of officials and to fully cover damages (material, health, moral damage), although with no particular emphasis on environmental issues. This is a general right. Environmental issues are covered by the provisions of the Law on Environmental Protection (Articles 12,13, 89, 90, 91).
As has already been stated, the constitutional provisions cover not only citizens of the RF but also foreigners and persons without citizenship who are on RF territory (Article 62/3).
The first collective citizens' environmental lawsuit in Russia (183 plaintiffs — residents of the South Butovo district of Moscow) was filed in 1992, just after the first RF Law on Environmental Protection had entered into force (March, 1992). The action was taken against the Moscow City Government and the Moscow Environmental Protection Committee (MEPC). These public authorities had given permission to construct a huge housing complex (300,000 residents) on the territory of the specially protected "green belt" protection zone around Moscow, an activity which was prohibited by law. This decision was made without taking into account public protests, complaints, the results of public hearings, expert opinions and without comprehensive EIA.
Environmental lawyers from NGOs, who provided legal help in this litigation, based the lawsuit on the provisions of Articles 12, 14 and 40-42 of the Law On Environmental Protection, and on Article 28 of the Land Code. Because of citizens' persistency in protecting their rights and the professional help they received, after five years of litigation the Moscow Government was forced to propose a compromise, and the case concluded in a peaceful resolution in 1997. As a result, more than 3,000 trees were saved, as well as many ponds and small rivers.
The residents of the Muslyumovo settlement (Chelyabinskaya Oblast), which was heavily polluted by radioactive waste, filed a lawsuit against the nuclear processing plant in order to cover moral damage caused by the birth of children with irreversible birth defects. A local NGO environmental lawyer provided legal help. The complaint was upheld by the court (1996-1997).
A resident of the Totski region in Orenburg Oblast filed a lawsuit against the Ministry of Health for refusing to give her information relating to the state of her health, which was damaged in 1954 during a nuclear bomb test. Lawyers from NGOs represented her interests. The Ministry of Health provided the requested information at the court hearing (1996).
In practically all known environmental litigations the constitutional provisions already mentioned have been actively used by citizens, NGOs and prosecutors, to substantiate the complaint or lawsuit to protect their environmental rights, for adequate provision of environmental information and for public participation.
For other environmental administrative decisions the average duration of obtaining a final decision is three to four months. The average time for appealing these decisions to an administrative body or to a court, is as described above.
| 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 procedure | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | x | - | x | - |
| affected | - | x | x* | x | x |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x | x* | x | x |
* in criminal procedure - via prosecutor |
|||||
Example:
In the supreme court, a lawsuit was filed by the Committee on the Environment against 12 decisions of the prime minister concerning category one forests (1997-98); Article 116 of the CPC RF was used.
In acting Russian legislation, the illegal actions of officials which violate citizens' rights and freedoms equate to "inactivity" concerning legal consequences (these actions are considered as the "failure" to fulfill obligations, requirements of law).
Under the Russian Labor Law there are various sanctions which can be applied to an official who has failed to fulfill his/her official obligations. Their responsibility is also detailed by the Federal Law on Principles of State Service.
In the case of an official failing to fulfill the requirements of law, disciplinary measures can be applied. This is regulated in the RF Labor Code. The following disciplinary sanctions can be levied on an official: rebuke, reprimand, strict reprimand, dismissal. An official can be held liable for material responsibility in relation to direct real damage. The amount varies from limited material responsibility (not more than one month's salary), to the whole cost of damage caused. For systematic intentional non-fulfillment of official obligations some categories of officials can be held to administrative or criminal responsibility. Citizens can appeal decisions or actions of officials or governmental bodies, and demand costs to cover material and/or moral damages (civil liability).
There are also special rules and procedures concerning the execution of court decisions in which sanctions for non-fulfillment of court decisions are provided. (Federal Law on Execution Procedure [1997]).
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative procedure | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | x | x | x | x |
| affected | - | x | x | x* | x |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x | x | x | - |
* in criminal procedure - via prosecutor |
|||||
It is possible to obtain interim relief against enterprises in civil court (i.e. cessation of environmentally dangerous activity), according to the CPC (Article 133-137) and the Law on Environmental Protection (Article 91).
If the plaintiff's motion about interim relief is satisfied, the court can also oblige the plaintiff to raise a bond to guarantee the compensation of damages which may be incurred by the defendant (e.g. lost profit, fines for prolongation of terms, etc.). Usually these future possible losses of defendants in environmental disputes are huge, and most plaintiffs (citizens or NGOs) do not have enough money to deposit such a bond. This makes this provision "a dead rule", and leads to discrimination against public interest and very often to the loss of the "object" of the court dispute (i.e. trees are cut, natural resources are exhausted or irreversibly lost, biodiversity is destroyed, the environment is irreversibly polluted).
The problem individuals and NGOs predominantly face is the lack of acting Russian legislation. There are no privileges or levies in the form of symbolic bonds for NGOs or citizens who attempt to protect public environmental interests through law suits. Hence access to real justice in this area is prohibitively expensive, which discourages the public from taking cases to court.
Both in civil and arbitration procedures there are special institutions of court execution and executors which are regulated by a special set of law provisions, rules and regulations. A system of fines has been established, which can be imposed on violators for not fulfilling court judgments.
Actions of court executors (who, since January 1998, are responsible to the Ministry of Justice) can be appealed by an unsatisfied party through administrative or court appeal procedures. But still law enforcement is a crucial issue because of economic problems. Lack of strong and inevitable law enforcement makes the law itself inefficient.
Court fees for non-material lawsuits (appeals), such as an appeal against denial of public information, is roughly USD14 (i.e. ten per cent of the minimum monthly salary).
A challenge against a governmental development project: USD 14.
A challenge to an EIA/environmental expertise decision: USD 14.
Other costs connected with "environmental litigation," including refusal to give environmental information, can amount to more than the minimum monthly salary. This figure can potentially increase 50 to 100 times, once advocate fees, expert costs, transportation costs for witnesses, etc. have been taken into account.
Under the acting Law on Court Fees, there are some waivers available for citizens and NGOs with regard to court fees. Under special provisions of the CPC (Articles 116 and 120), there are some privileges (waivers or levies) for other categories of expenses, such as expert fees. There are no waivers available for these types of expenses in the arbitration courts.
A party is able to recover any or all of these fees upon winning a case. There are procedural possibilities for the recovery of all fees for a winning party, regulated by the special provisions in the CPC and the APC (the general principle is that the loser pays, but if the result is divided between parties, expenses are also divided proportionally).
A winning party in a case can seek to claim expenses from the loser (compensation for damages, lost profit, moral damage, losses of salary, advocate expenses, legal consulting, etc.). Court fees must be covered by the loser in all cases.
There are between 10 to 15 NGOs providing legal advisory services to protect public interests in the RF; of these, five are active in the environmental field. These NGOs occasionally provide the public with legal consulting, and on very rare occasions with litigation services. They do not charge fees for their services.