Article 50 of the constitution guarantees everyone a right "to an environment that is safe for life and health, and to compensation for damages inflicted through the violation of this right." Everyone is also guaranteed the right of free access to information about the environmental situation and the quality of food and consumer goods, and also the right to disseminate such information. No one shall make such information secret
According to Article 13, the land, its mineral wealth, atmosphere, water and other natural resources within the territory of Ukraine, the natural resources of its continental shelf, and the exclusive (maritime) economic zone are objects of the rights of property of the Ukrainian people. Ownership rights on behalf of the Ukrainian people are exercised by bodies of state power and bodies of local self-government within the limits determined by the constitution. Every citizen has the right to utilize the natural objects of the people's right of property in accordance with the law.
Article 16 makes it the state's responsibility to ensure ecological safety and to maintain the ecological balance on the territory of Ukraine, to overcome the consequences of the Chernobyl catastrophe and other catastrophes of global scale, and to preserve the gene pool of the Ukrainian people.
Other constitutional rights that can be connected to environmental issues include the following:
Almost all laws connected with environmental protection and natural resources usage contain the principles of public participation in environmental decisionmaking and other citizens' rights, more or less. The law on the environmental protection (June 25, 1991) provides the environmental rights of citizens (Article 9) and NGOs (Article 21). Moreover, it provides principles of public control in the area of environmental protection (Article 36). Such control is conducted by the public inspectors in the area of environmental protection, who can be appointed by an NGO in accordance with its statute or by the Ministry of Environmental Protection and Nuclear Safety and its bodies in the regions. In addition, the Water Code (June 6, 1995), the Forestry Code (January 21, 1994, Article 27), the Law on Air Protection (October 16, 1992, Article 41), the Law on the Animal World (March 3, 1993, Article 53), and the Law on the Nature Protection Fund of Ukraine (06.16.92, Article 63) all contain public control principles.
Ukraine is a party to 20 other nature protective conventions of a global and regional importance and four protocols. Ukraine obtained the status of observer in the Helsinki Commission (Convention on the Protection of the Baltic Sea From Pollution).
Active work is done in implementing regional conventions, such as:
So far, Ukraine has ratified only one of the conventions listed above. The other three have been prepared by the Ministry of Nature Protection for ratification by the Supreme Council. The process is expected to be accomplished in 1998.
The principles of the Convention on Environmental Impact Assessment in a Transboundary Context, adopted at Espoo in 1991, might be considered to be implemented in legislation already (for instance, The State Constructive Norms, SCN A.2, February 1, 1995)
These Acts are not only documents of national significance but also are an important input into the general European process since they define the priorities of environmental activity and international cooperation. These documents were discussed by the authorities and public several times.
State bodies pay great attention to the discussion of the public participation draft convention. Several meetings were held to discuss the draft convention. For example, on November 12, 1997, a joint discussion of the draft convention was organized, and it included the Supreme Council deputies, representatives of the Ministry of Environmental protection, scientists and the public.
Local councils may "approve, following the environmental requirements, the draft projects of planning and constructing activities in residential areas; approve local environmental programs, create and indicate a status of local extra budget funds, reserved funds, and foreign currency funds for financing those programs and other environmental protection measures; make decisions concerning organization of the territories and objects of heritage funds of a local value, and are subjects to a special regime of protection; issue and cancel the permissions for using the nature resources of a local importance; terminate the business activity of local enterprises, institutions, organizations, and limit or terminate the activity of local enterprises, institutions, organizations which are not inferior to the council in case of their violation of nature protection legislation."
The executive bodies of local council may:
Ukraine also has a specific Law on Information that was enacted on October 2, 1992; and according to the Presidential Decree of July 21, 1997 (No. 663/97), the Cabinet of Ministers is required to elaborate the draft of the Law on the Informational Activity of State Bodies and Local Authorities.
There is no specific law on environmental information so far. Nevertheless, there has been widespread debate over the adoption of this type of law since 1995. The principles governing access to environmental information are contained in Articles 9 and 21 of the Law on Environmental Protection. Article 9 states that every Ukrainian citizen has a right to "obtain the full and trustworthy environmental information in order established by law." Article 21 provides environmental NGOs with the right to "obtain environmental information, information about the sources of pollution, programs and measures for improving the situation in order established by law."
The health protection legislation is based on similar principles (Article 6 of the Law on Promoting the Sanitary and Epidemic Welfare of the Population, Article 10 of the Law on the Use of Nuclear Power and Radioactive Safety, and some other laws). The general principles on access to information and providing the information are established in the Law on Information.
There is no definition of environmental information in Ukrainian law. On April 28, 1990, the Council of Ministers adopted the statement No. 100 on the Order and Frequency of Publicizing Environmental Data, Including Radiation Conditions and Human Health, which indicates that the information has to be gathered by the authorized bodies and presented to the Ministry of Environmental Protection and Nuclear Safety. There is also a separate document adopted by the Cabinet of Ministers on September 23, 1993 that describes the actual reasons for environmental monitoring and indicates the objects of observation.
Conditions for Obtaining the Information
The Ukrainian Constitution promotes the right to information, including environmental information, for everybody. The majority of laws present this right to Ukrainian citizens and juridical persons, but other countries, their citizens and juridical persons, international organizations and non-citizens may not be subject to the same rights.
Article 24 of the Ukrainian Constitution establishes that citizens have equal constitutional rights and freedom and are equal before the law. There are no privileges or restrictions based upon race, color of skin, political or other beliefs, gender, ethnic and social origin, property, ownership, position, place of residence, language, religion or other circumstances.
Since the right of access to information is guaranteed by the constitution, all of the state governmental bodies, local authorities, public servants and other officials, institutions, organizations and groups of citizens are required to provide information if the realm of access to it is considered to be open, according to Article 28 of the Law on Information. The information dependent on the realm of access is divided into two groups: open and with limited access or confidential and secret. Article 50 of the Ukrainian Constitution states that information on the environmental situation and the quality of food and housing equipment cannot be restricted. In accordance with the list of data that is not subject to commercial secrecy (Directive of Cabinet of Ministers of Ukraine, August 9, 1993), information about environmental pollution and the awareness of products (i.e. food) that are a potential health risk are not considered to be a commercial secret. Therefore, both governmental bodies and private institutions and businesses are obliged to present such information when requested. Nevertheless, the actual mechanism that would regulate the process of receiving information from private institutions and business circles is not developed in Ukrainian legislation.
The following principle of Ukrainian legislation regulates deadlines for access to official documents: "The term during which an appeal/request/inquiry must be responded to, so as to inform the inquirer whether or not the request can be met, should not be longer than 10 calendar days. During this term the state body is obliged to inform the applicant, in writing, as to whether their request will be met, or whether it is not a subject for their acquaintance." (Law on Information, Article 33, parts 1 and 2)
The great majority of appeals for information must be met within one month. A citizen's appeal that does not require a detailed study/investigation must be responded to immediately, no later than 15 days from the day the request was received. If the person who is authorized to provide the information is unable to provide the information requested in time, the reasons for delay and the term required to produce the information must be indicated. However, the general term should not be longer than 45 days in total. (Law on Information; Article 34; Law on Citizens Appeals, Article 20).
Any refusal by a state body to provide official information should be presented in writing within 10 days (Law on Information, Article 33, part 2).
Citizens have broad rights with regard to the form of information provided. In accordance with the Ukrainian Constitution (Article 34), citizens have a right to apply for information in any form — oral, written or any other, based upon their choice. Following the Law on Information (Article 35), they also have a right to study the official documents presented, make transcripts, take pictures, record, etc. The "documents" are interpreted in Article 27 of the Law on Information. The documents are " foreseen by law the material form of obtaining, keeping, using and spreading the information by means of providing it on paper, tape, video, photo and other bearers."
Refusal to Provide Information
A request for information may be refused if the realm of access is limited, secret or confidential. As mentioned above, information on the environmental situation and on the quality of food and housing equipment cannot be considered secret, and information on environmental pollution and the awareness of products (i.e. food) that pose a potential health risk also cannot be restricted.
However, Article 34 of the constitution states that the execution of freedom to collect, use and disseminate information may be limited by law in the interests of national security, territorial integrity or the public order, with the purpose of preventing disturbances or crimes, to protect the health of the population, to protect the reputation or rights of other people, to prevent the announcement of information received confidentially, or to support the authority and impartiality of justice. In case of martial law or state of emergency, rights and freedoms (including informational ones) may be partially limited (Article 64).
In accordance with the Law on Information (Article 37), official information may be withheld if it contains the following:
With regard to state secrets, the Law on State Secrets (No. 3855-XII), dated January 21, 1994, provides the possibility for a public interest test. According to Article 6 of the law, information cannot be withheld if refusal to release the information either violates the constitutional rights of an individual or would cause harm to public health or safety. Article 12 stipulates that the decision to lower or cancel the level of secrecy may by made on the grounds of the conclusion of the state secret issues expert.
In addition, the Directive on the Order of Providing, Canceling and Execution of Citizens' Access to State Secrets (July 1996), states that the head of the institution or enterprise owning the information can meet and decide the issues of providing the information which contains the state secret to citizens when he or she has a well-grounded application, petition or letter from his work or study place.
Since in Ukraine the domination of the environmental safety requisitions exists, it is theoretically possible to obtain information about the activity that causes essential harm to the population, environment and other cases.
Informal Guidelines for Agencies and the Public
There are no informal guidelines regarding provision of information and/or environmental information; most cases are expressly covered by relevant legislation. However, sometimes governmental bodies are not fully acquainted with the present Ukrainian legislation on this issue.
Specific Institutions/Officials to Provide Information
One of the main tasks of the Ministry of Information of Ukraine (created upon the presidential decree of February 19, 1996, No. 160/97) is to spread information on the most important public processes in Ukraine. There are also press services and information analysis agencies in the Cabinet of Ministers, different ministries and other central bodies of executive power.
The main Department of Information and Connections with Mass Media and Public of the Cabinet of Ministers (created upon the order of Cabinet of Ministers, (April 9, 1993, No. 267) oversees information flow between the Cabinet of Ministers and the population, central and local bodies of executive power and NGOs. One of the main tasks is to inform the population about the present activity of government and decisions adopted.
The State Information Agency of Ukraine (created July 15, 1997) is subordinate to the Ministry of Information. Its task involves realization, within its authority, of the state policy in the sphere of information by means of collecting, working out, creating, keeping and preparing the information, dissemination and spreading news, presenting pictures and other informational materials to mass media, state bodies, enterprises, institutions, organizations, unions of citizens, and individuals in Ukraine and abroad.
It is also necessary to mention that according to the Presidential Decree of July 21, 1997 (No. 663/97), the Cabinet of Ministers is authorized to elaborate and enforce the plan of action for creating the information analysis system of the state governmental bodies, study the question of creating Crimea Autonomous Republic, Zakarpatska, Donetska, Lvivska and Odeska regional information analysis centers.
The main body responsible for providing environmental information is the Ministry of Environmental Protection and Nuclear Safety (created in 1991 and re-organized in 1995). The ministry and its local bodies organize work connected with the study of environmental conditions, evaluate and predict the consequences of environmental pollution, provide complete and objective information to the public about nuclear objects as well as neighboring territories, organize monitoring of the environment, create and promote environmental information centers, and annually prepare a national report on the state of the environment.
If an Authority Does Not Possess the Information
Agencies are not obliged to provide all information and/or environmental information they are asked for if they do not have it, and they are not responsible for getting information from other agencies. In addition, agencies are not obliged to provide contacts within the agency that does possesses the information and/or environmental information. However, agencies that receive requests outside their competence are required to forward the request to the appropriate agency, and they usually do.
Agencies may refuse to provide information.
It is necessary to note that informational inquiry is not a kind of citizen appeal (petition, complaints, etc.). The Law on Citizens' Applications contains a very progressive principle in the sphere. For instance, Article 7 states, "if the questions addressed to the state body, local authority... are not within their competency, they have to be addressed to the person/body competent in the term not longer than five days."
Information Held in Public Registers
Information held in public registers is available to the public free of charge.
Costs of Obtaining Information
The adequate facilities for obtaining copies of information on payment of costs of reproduction and dissemination are not always present. It depends on concrete facilities.
However, according to Article 36 of the Law on Information, applicants can be charged the expenses for performing their inquiry in terms of access to the official documents and providing the written information entirely or partly. The prices for copies of the documents requested are set by the state institutions. The Cabinet of Ministers or other state institutions determine the order and rates for gathering, searching, preparing, creating and providing the written information asked. The rates should not exceed the real outlay for performing the inquiries. Therefore, payment for obtaining copies is not that high and is not an obstacle.
Speaking of private sector information, which is the property of a private firm, prices can be high because Article 39 of the Law on information provides that prices and price formulation for the informational production and informational services is indicated by agreements. This may create some obstacles to obtaining private sector information.
In general, political, economic, social and international information is spread the most actively.
However, the Directive on State Environmental Monitoring (SEM), adopted by the Cabinet of Ministers on September 23, 1993, established the SEM system of observing, gathering, studying, disposing, keeping and analyzing the state of the environment and then predicting changes and elaborating the scientifically grounded recommendations for decisionmaking. The Ministry of Environmental Protection and Nuclear Safety, the National Space Agency, the Ministry of Health Protection, the Ministry of Agriculture, the State Committees on Forestry, Hydrometeorology, Land Resources and Housing are all obliged to take part in conducting the SEM.
Ukrainian legislation obligates the state bodies to spread the information. The function of active dissemination of environmental information belongs to the Ministry of Environmental Protection and Nuclear Safety and to the Ministry of Health. Nevertheless, according to the Cabinet of Ministers resolution dated April 28, 1990 (No. 100), a summary of the complex information on the environment, including data on radioactivity and on the level of illnesses among the population, must be publicized in the following ways:
In the case of an environmental emergency, the Ministry of Environmental Protection and Nuclear Safety and the Ministry of Health are responsible for informing the public. According to the resolution adopted by the Council of Ministers on April 28, 1990 (No. 100), "the information about the facts of extreme pollution or risk of such pollution, accidents and other situations must be immediately passed by the bodies that control the environmental situation in Ukraine to the Ministry of Environmental Protection and Nuclear Safety and the Ministry of Health and their local bodies. Then this information with the prognoses of possible development of pollution and recommendations of how to reduce and eliminate the negative consequences caused to the natural objects and human health have to be shared with mass media. The results of the investigation, cessation of the negative consequences, standing the liability have to be also spread as final information."
Methods of Dissemination
Individuals can obtain information from the official press, mass media, newsletters, reports and other published literature. It is also available on TV and radio. An active information supply is a practice, too. This applies generally to political, economic, social and international issues.
The active supply of ecological information has been increasing recently, especially compared with the years before 1995. The bodies of the Ministry of Environmental Protection and Nuclear Safety, together with the branch ministers and institutions, are obliged to prepare the National Report on the State of Environment in Ukraine. Following the Cabinet of Ministers resolution of February 2, 1992 (No. 61), this report has to be presented to the Supreme Council (the parliament of Ukraine) by July 1 each year. The corresponding local reports must also be prepared by the bodies of the Ministry of Environmental Protection and Nuclear Safety.
In practice, the National Report has been prepared but published only in a limited number of copies with a big delay and without wide accessibility for the public. The regional reports have also been prepared, but they were never published due to lack of material means. If requested, the bodies might present the national report in electronic form.
Public authorities often (but not always) inform the public through the mass media about the possibilities of submitting information to international bodies concerning noncompliance rules.
Electronic Means of Dissemination
The Ukrainian legislation does not require information to be disseminated through electronic means of communication.
However, a computerized legal information network has been installed in Ukraine, according to the resolutions of the Presidium of the Supreme Council of Ukraine on legal information (No. 2824-12 of December 7, 1992 and No. 180/94 of October 31, 1994), which regulate information supply through electronic means of communication.
Furthermore, the directive on state environmental monitoring requires bodies of a state executive power that conduct the observations to gather, study and keep the data on the environmental state due to the new computer technologies. Nevertheless, making such information available on the Internet or on a website is not required.
Nongovernmental Centers
Environmental informational activities are one of the tasks of many NGOs in Ukraine, and some NGOs list informational activities as their main goal. These information NGOs include the Ukrainian ecological newspaper Zelenyi Svit; informational agencies Ekho-Vostok; Unikorn; the information and publishing agency Dovkillia; information and publishing center Spilka Vriatuvannia vid Chornobylia (Salvation from Chornobyl); the informational agency Ecodefence-info; the Ukrainian ecological newsletter Oikumena; the Ukrainian representation of the Zelena Pressa association; Ecologicheskoye Prosvieshchienie (Environmental Education); Zielionoye Dvizheniye Donbasa (Green Movement of Donbass), etc.
The Ukrainian legislation does not provide for the obligatory recording of waste and sewage into a register; therefore, a register does not exist. However, every provincial division of the Ministry of Environmental Protection and Nuclear Safety is aware of the enterprises that are causing the greatest environmental pollution. In addition, the Cabinet of Ministers has adopted a list of activities and installations that are highly insecure in terms of their ecological state (Directive of July 12, 1995). This list includes only the branches of industry, and specific enterprises are not listed.
The Law on Citizens' Appeals (1996) regulates the provision of Article 40 in detail. It defines forms of applications, procedure for submission and consideration of appeals, time-limits, etc.
Chapter 3 (Articles 69-74) of the constitution regulates elections and referendum issues. Article 69 states that the expression of popular will shall be executed via elections, referenda and other forms of direct democracy. The provisions of referenda are covered in the Law on Local Authorities (1997) and the Law on All-Ukrainian and Local Referendums (1991). The following laws outline the specific provisions on the public participation in the environmental decisionmaking:
All citizens of Ukraine who are at least 18 years of age and who permanently live on the territory of Ukraine are eligible to vote in a national referendum. The persons declared incapable according to a court ruling have no vote.
A national referendum can be announced by the Supreme Council or the president, as well as by people's initiative at the request of no fewer than 3 million voting citizens. This group of citizens must represent two-thirds of the regions/oblasts1, and include at least 100,000 citizens from each one represented.
The issues that refer to the competency of Ukraine are decided by national referendum. Thus the subject of national referenda (on environmental issues in this case) may be as follows: approval of the particular provisions of the the constitution or introductions of amendments and additions; adoption, cessation and amending the laws of Ukraine or their particular provisions; decisionmaking on the main content of the constitution, laws and other legislative acts.
Local referenda can be announced by a Local Council of People's Deputies as long as half the total council representation supports it, or upon a request signed by one-tenth of the citizens of Ukraine who permanently live in the territory of the correspondent administrative-territory unit and have a right to participate in the referendum.
The subject of local referenda may be any issue under the competency of local authorities. The competency of local authorities is determined in the constitutional Law on Local Authorities of June 2, 1997 and other acts. The following issues are considered to be environmental: decisionmaking on management of land relations according to the law; issue of permissions on a special use of natural resources of local importance; decisionmaking on organization of a natural heritage fund's territories and objects or installations of local importance and other areas, subject to a special protection; issue of permission on allocation of new objects or installations on the territory of a village, town, city, the activities which influence the environment in this and other territories. Issues that fall under the competency of state executive bodies may not be put to a local referendum.
In practice, a national referendum on environmental issues has not been held so far. It seems easier and more effective to hold referenda on environmental issues at the local level. An example of such referenda is the referendum on the allocation of solid wastes, voted on by the residents of Olkhovka Village in the Kharkivska oblast (February 25, 1996). The referendum abolished allocation of solid wastes on the territory of Olkhovka Village.
The laws and other resolutions adopted by a national referendum do not need approval from the state bodies, and they have a superior juridical power over legislative and other acts of state authorities. Resolutions by local authorities that are adopted on local referendum, have a precedence over resolutions of local authorities in respect to the territory on which they were held.
Right to Initiative
Citizens of Ukraine do not have the right of initiative. Only the president, deputies, the Cabinet of Ministers, and the National Bank of Ukraine have this right (Article 93 of the constitution).
Citizens do have a right to apply to state and local authorities, unions of citizens, enterprises, institutions and organizations without respect to the form of ownership with comments, complaints and proposals referring to their activities based on the Articles of Incorporation, as well as appeals and petitions on their rights, lawful interests and complaints about the breach of those (Law on Citizens' Appeals, Oct 2, 1096). Therefore, citizens can initiate environmental or corresponding issues. State and other bodies to which the appeal is sent (an appeal should be properly filled out) shall accept and consider appeals within a one-month period, which can be prolonged for no more than 45 days if impossible to solve within a month. If the issues referred to in an appeal are not within the competency of a target body, they shall be forwarded to an applicable institution within five days. If the request lacks data sufficient for a reasonable solution, it shall be sent back to citizens within a specified period. The bodies to which appeals are sent shall organize timely and disengaged consideration, make decisions in accordance with the legislation and provide their fulfillment and release of the results of appeal consideration.
Some laws rule directly what kind of issues may be initiated by citizens and NGOs. For instance, an NGO may initiate national and local referenda on environmental issues (Law on Environmental Protection, Article 21). NGOs and citizens may also apply for the creation of nature protection measures (Law on Nature Heritage Fund, June 6, 1992) or request a ban on the activities of enterprises, institutions, organizations, or citizens who cause damages to the environment (Law on Property of July 2, 1991, Article 10).
However, parliamentary committees of the Supreme Council generally include consultants (usually scientists or experts on specific issues), and NGO representatives or branch experts may be invited to the committee meetings or to certain project discussions. In addition, advisory boards have been created at the Ministry of Environmental Protection and Nuclear Safety and its local bodies in all oblasts, and these boards include public representatives.
It is difficult to judge the effectiveness of this from of the public's participation in terms of its influence on the decision at the different levels. Nevertheless, there are cases when decisions to prohibit activities causing damage to the environment have been made by both state and local authorities as a result of comments or appeals by the public. Because of a low acquaintance level, legal illiteracy and low public participation, that is a rare thing to expect.
During the state environmental expertise, public hearings may be held as well as a public ecological expertise, the conclusion of which is advisory by nature (Law on Environmental Expertise Feb 9, 1995). Nowadays, public hearings during the expertise do not actually take place because of the absence of a regulated procedure and the necessity of certain fund expenditures.
The Law on Local Authorities (May 21, 1997) rules that a territorial community may hold public hearings at which community members can raise questions and introduce proposals on the local importance issues. The proposals introduced upon the results of hearings must be considered by local authorities. Such hearings take place at least once a year.
It is practically impossible to evaluate how public comments are taken into account during the legislative process. There are no records of this kind, and as long as citizens are not entitled to initiate legislation, their proposals instead might be presented by some deputies, and in the process of discussion such comments are principally changed.
Between 1995 and 1997, there were unique occasions of the public commenting or proposing something to the environmental drafts at the stage of parliamentary meeting, but recently (probably because of better information) such forms of participation became more effective (for example, the public commenting the Law on Wastes).
The public generally may obtain information about the national legislative process through mass media (i.e. newspapers, television, radio). Individuals sometimes can participate in deputy committee sessions by appealing directly to the committees or deputies with a request for information.
There is no special board or informing edition in which discussed project data is published. The newspaper Golos Ukrainy (the Voice of Ukraine), which is edited by the Supreme Council, publishes information on some drafts that are being discussed in the committees of the Supreme Council from time to time. Furthermore, the laws and directives of the Supreme Council are also published there. The sessions of the Supreme Council are also broadcast on television and radio, and this provides the public the opportunity to follow the process of adopting the legislation. The Cabinet of Ministers also has its own newspaper, Uriadovyi Kurier (the Governmental Courier).
The informational relations between the state and local power bodies and the mass media are regulated by the Law on the Sequence of Monitoring the Activity of State Power Bodies and Local Self-Government in Ukraine Through the Mass Media (Sep. 23, 1997). Such relations are built upon the contract relations that are developing within the means identified in correspondent budgets. The expenses for financing the mass media for monitoring the activity mentioned above are to be allocated separately in both state and local budgets. There is a specific directive adopted by the Supreme Council that regulates the forms and other peculiarities of mandatory monitoring of the activity of the Supreme Council itself. The directive has to be developed for each session. The session's transmission has to compile 3 percent of the volume of transmissions per year on the nationwide channel.
Even though the process of adopting the legislation by the Supreme Council is the most open, some obstacles exist for average citizens to get acquainted with a draft. Using the measures mentioned above, he or she can only get to know that such drafts are being discussed. In order to obtain the exact text of a draft, citizens theoretically need to submit a request to the Supreme Council or to a deputy.
Information about the process of decisionmaking of the president, the Cabinet of Ministers, and other central bodies of state power is not generally available, except for some brief announcements in the mass media.
The Ministry of Environmental protection dealt with this issue by creating the advisory councils, which include NGO representatives on both national and regional levels. It is there that NGOs may receive information on the different projects and decisions. So far, such practice has not been considered particularly effective. It is likely the information provided to the NGOs is not complete or they do not have possibility to disseminate it.
The conclusions of a state ecological expertise are one type of decision adopted by the Ministry of Environmental Protection and Nuclear Safety and its local bodies. With regard to Article 10 of the Law on Environmental Expertise, the investor of the expertise (the object of such expertise might negatively influence the environment) has to publicize its results through the mass media. This has to be done in a special statement about the ecological consequences of the activity (EIA). The bodies of the ministry are also required to publish the brief results of their conclusion in environmental expertise in the mass media. This is not done in practice.
The procedure of informing the public once decisions have been made is probably the most proper. Article 57 of the Ukrainian Constitution states, "Every person is guaranteed the right to know his or her rights and duties. Laws and normative acts that determine the citizen's rights and duties shall be properly announced to the population. Laws and other normative acts that determine the citizen's rights and duties not announced in the order determined by law are not valid." Such order is established by the Presidential Decree on the Sequence of the Official Publicizing of the Normative Acts and their Enactment (June 10, 1997, No. 503/97).
As for the process of local and regional decisionmaking, the public is less informed about it. It is difficult to analyze the practice in all the regions of Ukraine. Under different circumstances the informing of the public might be more or less developed in different regions, cities, etc. For example, in eastern Ukraine, in the huge urban centers where the environmental situation is tough, the great activity of the public is observed. That is why some forms of public participation are more developed here and the public is better informed. Nonetheless, the general tendency is that information about local decisionmaking is presented rather briefly. The full information may be obtained only by request and therefore only if a citizen or NGO knows about the project or decision. The projects and decisions are rarely published in their entire original form; usually only a synopsis is released. In some cases the citizens or NGOs may be invited to participate in the discussion.
According to Article 59 of the Law on Local Self-Government (May 21, 1997), the decisions of the council (village, city, etc.) that are of a normative character are not in force until the day of their official announcement.
According to the Supreme Council Regulations (129/94, July 27, 1994), sessions of the Supreme Council, its presidium, and regular and temporary Supreme Council commissions are open to the public, except for special closed sessions. Citizens are allowed to attend Supreme Council sessions if they put their names on the list maintained by the Supreme Council secretary at least 24 hours before the session starts. The public sits in a special viewing area separated from the deputies.
Supreme Council sessions are also regularly broadcast on television and radio. The Law on the Regular Commissions of the Supreme Council of Ukraine (April 4, 1995) states that the sessions of regular commissions are held openly, except for special cases.
Individuals must obtain permission from the regular commission in order to record or film a session or to transmit it on radio or television. Scientists, advisers, experts and others whose presence at the session is deemed necessary, can be invited to the regular commission sessions to discuss certain issues.
In practice, admission to the Supreme Council or its commission session is quite difficult for most individuals to achieve. To get in, an individual needs a special admission card, issued only when the person can sufficiently and reasonably prove a need to attend the session. It seldom happens that citizens are invited to the sittings. One rare example happened on November 12, 1997, when the draft of the Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters was being approved. The members of the Commission for Ecological Policies, the representatives of the Ministry of Environmental Protection and Nuclear Safety, scientists, foreign experts and representatives of a number of Ukrainian public organizations were all invited to the session.
Local council sessions are equally difficult to attend. According to the Law on Local Self-Government in Ukraine (May 21, 1997), sessions of local councils are open, but a council can decide to have a closed meeting if necessary. The law does not regulate the accessibility to meetings of the council commissions. Local Council sessions are sometimes transmitted on the local radio. In practice, citizen admission to the council sittings is quite problematic. It is possible to get in, but again the individual must prove the need to be present.
The government also does not give funding specifically targeted toward any independent public participation projects or training.
Basic environmental rights are given in Article 50, which states that "every person has a right to a safe and healthy environment, and to compensation for damages resulting from the violation of this right."
Finally, Article 66 protects the environment in general by stating that "no person may damage the environment or cultural heritage, and [any person who does] shall pay compensation for damages caused by him or her."
The constitutional provisions for legal standing, etc. are used in all suits dealing with the protection of environmental rights and interests which are brought before court. For example, 275 citizens sued the city council and the commercial firm Astra for illegally constructing a residential building on the territory of a city park. The suit was grounded on Articles 50 and 55 of the constitution and some other norms. The court ruled the decision to allow the construction was illegal.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | x1 | x2 |
NGOs |
||
| everyone | - | - |
| interested/affected | x3 | x4 |
1. Constitution, Articles 34 and 40 2. Law on CitizensŐ Appeals, Article 16; Law on Information, Article 48 3. Law on Nature Protection, Article 21 4. Law on Information, Article 48; Law on Ecological Expertise, Articles 44 and 55; Civil Procedural Code, Articles 4 and 248/1, Law on Citizens' Appeals, Article 16 |
||
Citizens also have a right to participate in the consideration of the placement, constructing and rebuilding of objects harmful to the environment; and they can participate in the process of drawing up the proposals to the state and economic bodies, institutions and organizations about the correspondent issues, conducted by the local councils (Law on Environmental Protection, Article 9).
Further administrative standing is granted by Article 10 of the Law on Property. According to this law, every Ukrainian citizen, personally or through NGOs, labor unions or the bodies of the territorial and public self-government, has the right to participate in the consideration of issues connected with the use of natural resources. Citizens can require other citizens and NGOs to implement the rules of nature usage and environmental safety as well as uphold ban requirements on the activity of enterprises, institutions, organizations and citizens that is harmful to the environment.
Complaints or appeals regarding the decisions of the state authorities, local authorities, institutions, enterprises, mass media, and governmental officials is conducted on the basis of subordination to the higher body or official but does not deprive an individual of a right to appeal to a court (Law on Citizens' Appeals, Article 16). In accordance with the legislation, an individual can apply to court when there is no higher body or when the person challenges the decision on the appeal.
In cases when the state, the local authorities, their officials, political parties, other NGOs, mass media or state organizations which are legal entities are found committing wrongdoings, such actions are to be challenged to the higher institution or a court (Article 48 of the Law on Information).
The law provides specific provisions for NGOs with regard to administrative standing. Article 21 of the Law on Nature Protection provides NGOs with the following rights:
Article 44 of the Law on Ecological Expertise states that the legal entities concerned in challenging the conclusion of a state environmental expertise and some of its principles are to file the well-grounded appeal to the correspondent city council, bodies of the state executive power, state environmental expertise and other bodies, which had taken the decision to conduct an expertise. In case the appeal is rejected they have a right to apply to a court.
The deadline for receiving information from administrative bodies is one month from the date of the request, according to the Law on Information. The deadline for citizens to file an administrative appeal is two months from the day the citizens' rights were violated (CPC, Article 248/5). Once filed, an administrative appeal must be settled within 15 days, according to Article 148 of the CPC. In practice, this article is not enforced.
Since the law does not provide special norms referring a dispute on refusal to provide information, NGOs filing the suit have to be ruled by the general time limit for suit standing, which is three years. At the same time, the time for a trial in the arbitration court, with the reference to Article 69 of the APC has to be within two months from the day the suit is filed. In exceptional situations the head of the arbitration court may prolong this term, but by no more than one month. It is also possible that a dispute will be decided over a longer term when the parties ask for and agree to this.
It is important to mention that in accordance with the presidential decree of July 21, 1997 (No. 663/97), the Cabinet of Ministers is obligated to create a special body to hear matters concerning informational activity.
The time required for other administrative decisions depends on each concrete issue because terms for making a decision on development projects are not regulated. For example, an enterprise may receive permission to process or expel polluting substances within one month from the day of filing the documents, while the term for conducting an ecological expertise is usually between 45 and 120 days. However, the time limits for appealing against these decisions is the same as for information cases.
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative procedure | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
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| every person | - | - | - | - | - |
| interested/affected | - | x1 | x2 | - | x3 |
NGOs |
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| everyone | - | - | - | - | - |
| interested/affected | - | - | x2 | x4 | x3 |
1. Constitution, Article 55; Civil Procedure Code, articles 4 and 248-1; Law on Citizens. Appeals, Article 16; Law on Information, Article 48 2. Criminal Procedure Code, Article 4 3. Law on Constitutional Court, Article 43 4. Arbitration Procedure Code, Article 1; Law on Information, Article 48; Law on Ecological Expertise, Article 44. |
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Article 55 of the constitution expressly gives citizens the right to challenge the illegal decision, actions or inaction of a state or local body, or their officials in the court. Furthermore, Article 4 of the Civil Procedure Code (CPC) states that any person concerned has a right to appeal to court in order to protect his or her violated right or challenged interest, in the order established by law. This right is extended to cover cases against the government in Article 248/1 of the CPC, which provides individuals with the right to apply to court with a complaint when he or she believes a decision, action or inaction of a legal entity or an official violates his or her rights or freedoms (Ten articles are devoted to the procedure of considering such complaints).
A criminal case may be brought only by a court, prosecutor, investigator or by the body of inquest. Citizens or NGOs can apply to those bodies if they foresee a crime in the actions of some subjects. Following Article 4 of the Criminal Procedure Code, a court, prosecutor, investigator, or a body of inquest are to bring a case, within their authority, every time the features of crime are present and are to take all the measures for finding out the place of the crime, people guilty and punishment.
Citizens and legal entities (NGOs in particular), following Article 43 of the Law on constitutional Court, are entitled to constitutional appeal. The same article explains the constitutional appeal as a written petition to the constitutional court to interpret the Constitution of Ukraine and the laws of Ukraine in order to promote the realization and protection of the constitutional rights and freedoms of a human being, citizen or legal entity. For instance, it is appropriate to apply to the constitutional court when a governmental body and a citizen have different interpretations for the same law or when citizens believe their rights were violated.
NGOs have an additional right to seek a settlement in arbitration court. Article 1 of the Arbitration Procedure Code of Ukraine says that legal entities (including NGOs) have a right to apply to the arbitration court for protection of their violated rights and challenged interests. This is supported by Article 48 of the Law on Information and by Article 44 of the Law on Environmental Expertise.
In the case of public officials failing to uphold the law, once Article 55 of the constitution applies again. According to this article, citizens have a right to apply to court in order to appeal the decisions, actions or inaction of the officials or public officials. If this inaction leads to violation of the citizens' rights or freedoms, then Article 248-1 of the CPC applies. Citizens also can appeal to the court if obstacles for realization their constitutional rights and freedoms are created or being created, or in case the measures taken with regard to upholding their rights are insufficient.
With regards to the judgment, Article 248/7 of the CPC states: "When indicating the substantiation of the complaint, the court considers the appealed decision, action or inaction to be illegal and either obligates the governmental official to satisfy the requirements of the appealing party and eliminate the violation or restore the violated rights and freedoms by other means."
Public organizations also may apply to the court for protection of their violated or disputable rights according to Article 55 of the constitution and to norms of environmental legislation. They may even apply to court when environmental legislation in general has been violated without any reference to the violation of concrete rights of that organization. To qualify for this, the stated goals of the organization must contain the principle of defending environmental rights. Furthermore, the Water Code of Ukraine contains a progressive principle in Article 11, which states that environmental organizations may file suit for compensation of damages caused to the state as the result of polluting or exhausting the waters.
| 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 | - | x1 | x2 | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x3 | x2 | x4 | - |
1. Constitution, Article 50; Civil Procedure Code, Article 4; Law on Environmental Protection, Articles 9 and 21 2. Criminal Procedure Code, Article 4 3. Article 4 of the Civil Law governs suits of an NGO against the citizens or entities whose activity results in the worsening of the environment and people's health as a result of negative effects on the environment; Article 21 of the Law on Environmental Protection gives NGOs the right to file lawsuits demanding compensation for damages done to citizens' health and NGOs property as a result of violation of the mentioned law 4. Arbitration Procedure Code, Article 1; Law on Environmental Protection, Article 21 |
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There are no special administrative courts in Ukraine, but citizens and NGOs may apply to the Cabinet of Ministers, the Supreme Council of the Crimea Autonomous Republic, local bodies of a state executive power, the bodies of the Ministry of Environmental Protection and Nuclear Safety, the bodies of a state sanitary-epidemic inspection, other specially authorized state bodies or local authorities to request limitation, cessation or termination of the activity of enterprises, institutions or organizations in the case of violation of environmental legislation.
Citizens and NGOs may also file a civil suit against enterprises, institutions or organizations for compensation of damages to their health and property caused by the negative influence on the environment (Law on Nature Protection, Articles 9 and 21).
With regard to criminal cases, citizens and NGOs may apply to the public prosecutor's office with the appeal or complaint composed in an unrestricted/free form. Each complaint is subject to investigation by the prosecutor's office. If a violation of the law is found, the law enforcement officials or prosecutor must take adequate measures, which include "appeal against the acts of the bodies of a state power and authority, their officials, local authorities, enterprises, institutions, organizations or NGOs; open a criminal case, disciplinary or administrative hearing; apply to the court or arbitration court appealing for protection rights and legal interest of citizens, state, enterprises and other legal persons." In addition, the prosecutor's office must keep up with the precise and unswerving fulfillment of the law and enforce the above-mentioned measures: "The law observance requirements issued by a prosecutor are obligatory for all bodies, enterprises, institutions, organizations, officials and citizens and have to be enforced immediately under the canons and within the term established by law."(Law on the Prosecutor's Office, Article 8)
With reference to Article 149 of the Civil Procedure Code, Article 66 of the Administrative Procedure Code states that arbitration courts can adopt measures for injunctive relief at the request of parties involved in a case or at its own initiative. The injunctive relief is acceptable at any stage of the case if not adopting such measures might hinder or prevent the court decision.
The most effective way to promote the suit in environmental cases is to prohibit certain concrete actions (i.e. stopping an official body from enforcing a disputed decision), as is settled in Article 152 of the CPC and Article 62 of the APC.
Measures for promoting the suit are usually adopted by the time the court decision enters into force; nevertheless, the court may cancel the injunctive relief before the final ruling (mainly in situations when the conditions for injunctive relief have passed).
NGOs and individuals also have the possibility to seek injunctive relief against enterprises according to the same principles. Moreover, the Supreme Council Directive of October 29, 1997, permits the limitation, temporary prohibition, or termination of the activity of enterprises, institutions, organizations and other entities if the activity violates the environmental laws of Ukraine. This restriction of activity can be ordered by the Cabinet of Ministers, the Supreme Council of the Crimea Autonomous Republic, local bodies of a state executive power, the bodies of the Ministry of Environmental Protection and Nuclear Safety, the bodies of a state sanitary-epidemic inspection (health inspection), other specially authorized state bodies and local authorities. Therefore, individuals can apply to these bodies to ask for termination of a polluter's activity.
The Ukrainian legislation embraces the system of liability for not enforcing the court judgments. In particular:
Holding liability for not compelling the court judgments does not release the subject from the obligation to execute judgments.
Generally, enforcement of court judgments remains problematic.
Article 5 of the directive states that local councils have the authority to establish the privileges for payers in regard to the specific state tax, which forms the local budget. The Ministry of Finance can grant privilege regarding national taxes, which make up the state budget of Ukraine.
In individual court cases, the party whose requirements were satisfied has to be reimbursed for all court expenses (state tax, expenses for conducting the court expertise, etc.) from the other party (CPC, Article 75; APC, Article 49).
According to the Directive on State Duty, the fees for an appeal of denial of public information, for a challenge to a governmental development project or to governmental lawmaking or decisionmaking, or for a challenge to EIA/ecological expertise decision shall amount to the following:
In court actions against polluters, citizens and NGOs have a right to sue for compensation for the injury caused as a consequence of damage to the environment. The health of citizens is also taken into consideration. The sum of the state duty is 5 percent of the sum of the material damages caused.
The most expensive part of a court proceeding is the court expertise. It is difficult to calculate its average price because the sum depends on the scope of questions addressed to the expert. Generally, one hour of an expert's work costs about 80 percent of the minimum monthly salary, not including the price of the necessary materials (e.g. reactives, etc.). In rare cases, citizens or NGOs might agree to provide expertise for free.
The average price for an attorney's services depends on the case and agreement with the client. It might cost approximately 80 percent of the minimum monthly salary per month. However, the Ecopravo organization described in the next section helps provide legal services in environmental rights protection cases at no cost to citizens and NGOs.
The legal advisory NGOs do not earn any fees for their services.
In addition to these specialized NGOs, some of the bigger environmental organizations have legal departments, but as a rule they do not succeed because they lack the necessary specialists.
In November 1997, the Law on the Authorized Representative of the Supreme Council of Ukraine on Human Rights was adopted. The law has yet to be implemented.