Regional Overview: NIS Countries

Access to Justice

In all observed NIS countries there is a constitutional right of each person to appeal to the court decisions, actions and failure to act of state bodies, local authorities and public officials (i.e. common legal standing) and the right to compensation for damages from the state government or local authorities for physical and moral damages caused by unlawful decisions, actions and inactivity of state bodies and local authorities or their officials.

The Constitution of Moldova does not guarantee the right to go to court over denial of access to environmental information or failure to allow public participation on environmental issues; however, the provisions of the Constitution of Moldova stipulating the right to go to court are applicable to any violation of rights, freedoms and lawful interests of a person.

The constitutional provisions guaranteeing the right to an environment that is safe for the health and life of citizens, the right to free access to environmental information, and the right to court protection of citizens' rights (i.e. legal standing) were successfully used in arguments in a Ukrainian case. The suit, brought to court by the NGO Ecopravo-Lviv on behalf of 265 citizens, prevented the city council and the commercial firm Astra from cutting down trees and constructing a residential building on the territory of a city park. The suit was grounded on Articles 50 and 55 of the Constitution of Ukraine and on some other norms. (For more information on this case, see the conclusions and recommendations section of the Ukrainian report.)

A similar case yielded different results in Armenia. Although the Constitution of Armenia does not stipulate environmental rights, the constitutional provisions on state protection and reproduction of natural resources, on the right to receive and disseminate information and on the right of citizens to legal protection by the court were used as arguments in case brought before the court in July 1997. The NGO EPAC filed the suit on behalf of the residents of the district adjacent to the Victory Park in the city of Yerevan. The residents wanted the court to reverse the mayor's decision to allow a group of public officials to build private houses on the territory of the park. The court ignored these arguments and the houses were built.

Administrative Standing

As shown in Table 10 and in the other tables presented throughout the reports, there is no administrative standing in administrative decisionmaking processes in Armenia and Belarus. Interested and affected individuals can participate in administrative decisionmaking in Moldova, Russia and Ukraine as well as interested or affected NGOs.

For example, the Law on Protection of the Natural Environment of Ukraine gives NGOs the right to create special public environmental funds; to participate with the special state authorities in carrying out control of implementation of environmental legislation, environmental plans and measures by enterprises, institutions and organizations; to make proposals to certain state bodies about the creation of specially protected areas; to carry out public environmental expertise; to initiate local and national referenda on issues related to environmental protection and usage of natural resources; to sue in court for compensation of damages caused by environmental violations, including the damage to the health of their members and the property of the NGO.

According to the legislation of Moldova, Russia and Ukraine, any interested or affected person or NGO has the right to appeal an administrative decision to a higher level authority on the grounds that the lower authority refused to provide information or falsified information or environmental information; or its decision did not follow legal procedure (e.g. allowing an ecologically dangerous facility without comprehensive EIA and environmental expertise, without public hearings, without taking into account public opinion, etc.). In Armenia and Belarus, administrative standing is even more broad: every NGO has a right to appeal administrative decisionmaking.

The Law on Citizens Petitions of Ukraine and similar laws of the other NIS countries (Law on Citizens Petitions in Belarus, Law on the Procedures for Consideration of Suggestions, Applications and Grievances of Citizens in Armenia, Law on Presenting Petitions in Moldova) outline the procedure for complaints about the decisions of state and local authorities, institutions, enterprises, mass media and governmental officials. According to the outlined procedure, complaints are conducted on the basis of appeal to the higher body or official. This does not deprive an individual of the right to appeal to a court. When there is no higher body or person to hear an appeal or if a citizen is not satisfied through the administrative appeals process, the person can take the matter to court.

Officials of state, public and other bodies, enterprises and organizations have an obligation to accept and, in accordance with the scope of their authority, to respond to citizens' suggestions and applications and to take proper actions.

According to the Law on Information of Ukraine, if the state or local authorities or their officials; or political parties, NGOs, mass media, or state organizations that are legal entities commit wrongdoing, such actions are to be challenged to the higher institution or court. Similar provisions exist in the other NIS countries.

Standing Against Government Agencies

In Russia, any interested/affected person or NGO can file suit in the constitutional court. In Belarus, an NGO can go to the constitutional court if a government decision, in the NGO's opinion, violates the law. In these cases the NGO must act through the state prosecutor or enforcing agencies. In Ukraine, citizens can call for a constitutional appeal by submitting a written petition for the court to interpret the constitution and the Laws of Ukraine in order to promote the realization and protection of constitutional rights and freedoms.

In Moldova, the right to go to the constitutional court belongs only to the president, the government, the minister of justice, the supreme court chamber, the economic court, the general prosecutor, members of parliament and parliamentary groups.

A criminal case can be brought in the NIS only by a court, prosecutor or investigator or by the body of inquest. Citizens or NGOs can apply to those bodies if they witness or foresee a crime. A court, prosecutor, investigator or a body of inquest has a duty to take all measures to determine the place of the crime, the guilty parties and the punishment.

The right to challenge an illegal decision, action or inaction of governmental bodies or their officials in the court is provided to everyone by the constitutions of all the NIS countries, as well as by the other laws (i.e. Law on Protection of Natural Environment, on Environmental Expertise, Civil Procedure Code, Arbitration Procedure Code).

According to the civil procedure codes in the NIS, any interested person has a right to appeal to the court to protect his or her violated right or challenged interest in the order established by law. For example, Article 248/1 of the Civil Procedure Code of Ukraine provides each individual with the right to apply to the court with a complaint when he or she thinks a decision, action or inaction of a legal entity or an official violates his or her rights or freedoms.

In another example, the chairperson of the Committee on Environmental Protection of the Federal Duma of Russia, together with a group of citizens and environmental NGOs, appealed 12 decisions of the prime minister to transfer territories of the first category forest into nonforest zone for commercial use. The supreme court satisfied the appeal based on Article 116 of Civil Procedure Code.

As mentioned above, the constitutions and the Laws on the Protection of Natural Environment of Belarus, Moldova, Russia and Ukraine guarantee the right of citizens and NGOs to sue in court for compensation of damage caused to health and property by environmental violations. For example, the former military chemical officer V. Petrenko, who was disabled by the Chernobyl disaster, sued the Russian Ministry of Defense for health and moral damages caused by an unlawful decision of the defendant. The court ruled in Mr. Petrenko's favor.

In all the NIS, interested/affected NGOs can go to arbitration court to defend citizens' rights to a healthy environment and to seek compensation for damage caused to their health or property. Any environmental NGO can represent a group of interested/affected citizens.

The first such collective citizens' environmental lawsuit based on the Law on Protection of the Natural Environment and Land Code provisions was filed in Russia in 1992. In the suit, 183 residents of Moscow's Butovo district sued the Moscow City Government and the Moscow Environmental Protection Committee for allowing construction of a complex to house 300,000 residents on the territory of a specially protected "green belt" zone around Moscow. Such activity was prohibited by law, and the decision was made without comprehensive expertise and without taking into account results of public hearings, public protests and experts' opinions. As a result of citizen efforts and the professional help of environmental lawyers from the NGO Ecojuris, after five years of litigation the parties concluded the settlement. In the end, more than 3,000 trees and several ponds and small rivers were saved.

If a public official carries out his or her duties incorrectly, the actions of this public official in Moldova can be appealed to the higher official, in accordance with the Law on Presenting Petitions, or to the court, in accordance with the Civil Procedure Code. The higher official or the court can force the public official to implement his/her duties in a right and proper way. Similar provisions in similar laws exist in all the NIS.

Standing Against Polluters

With regard to criminal courts, citizens and NGOs can complain about illegal activities to the prosecutor's office. Each complaint is subject to investigation by the prosecutor's office. If violation of law is found, the law-enforcement officials or prosecutor must take adequate measures.

Many aspects of access to information, public participation and access to justice, as well as court standing against both government and business, are represented in the following Ecopravo-Lviv case. A chemical fertilizer terminal financed by an Irish/Russian/Ukrainian joint venture was to be located in Mykolaiv, Ukraine. On the day the joint venture registered to do business, it donated 30 trams and 30 trolley buses to the city. Local authorities subsequently approved the project, and construction began in August 1995 in violation of environmental laws requiring that an environmental expertise be conducted prior to project approval.

The local branch of the Ministry of Environmental Protection and Nuclear Safety (MEPNS) ordered the company to conduct an environmental expertise of the project, and a prosecutor with the Sanitary Epidemiological Station (SES) ordered the company to stop work. The prosecutor also brought suit against the local administrators who gave the company the land for the terminal. The district court rejected this case on procedural grounds.

The company then submitted the project to the local MEPNS office for environmental expertise. However, the company did not publish the environmental impact assessment statement, in violation of the Law on Environmental Expertise. Local MEPNS officials subsequently rejected the project on grounds that it had unacceptable negative environmental impacts. However, the company then requested the national MEPNS office in Kiev to review the local MEPNS office's environmental expertise, and officials in Kiev reached a positive conclusion in their own environmental expertise, overturning the local MEPNS office's rejection of the project.

Ecopravo-Lviv sued the national MEPNS office in the High Arbitration court, claiming that the environmental expertise it conducted was deficient on procedural grounds. The court dismissed the case three times on procedural grounds before Ecopravo-Lviv was granted a hearing on the substance of its claims.

Ecopravo-Lviv represented two clients in the action filed in the High Arbitration court: Zeloney Svit (Green World), an environmental nongovernmental organization; and a shipbuilding company that claimed that the health of its workers would be adversely affected by the terminal. More than 10,000 local citizens also signed a petition opposing the project. By the conclusion of the case, this number had increased to 100,000, including the members of representative bodies such as local cooperatives and labor unions.

In its lawsuit, the Ecopravo-Lviv claimed that the ministry's expertise was invalid primarily on the following grounds:

• First, the Ministry failed to require the company to publish the environmental impact assessment statement prior to commencement of the environmental expertise, thereby depriving the public of the opportunity to participate meaningfully in the process.
• Second, construction of the project began before the ministry completed its expertise. This is strictly prohibited under the Law on Environmental Expertise. This premature construction complicated matters because significant funds were invested in the project by the time the case reached the courts, making it more difficult for a judge to invalidate the expertise and order that work on the project to cease.
• Third, the ministry failed to publish the conclusion of the environmental expertise. A news article announcing the expertise was published after the fact, and it differed from the actual conclusion.
• Fourth, the ministry failed to take public opinion into account as required under the Law on Environmental Expertise. In the face of 100,000 citizens voicing opposition to the project and a public expertise that found the project to be unsuitable, the ministry still approved the project.
• The expertise conclusion did not identify the experts who participated in the expertise, thereby depriving citizens of the ability to challenge their qualifications, in violation of the Expertise Law.
• The ministry failed to consider adequately the negative environmental impacts associated with the project, including but not limited to possible impacts on endangered species, the surrounding estuary, and pre-existing elevated contaminant levels in the South Bug River. In fact, a representative of the shipbuilding company had recently observed significant numbers of dead fish in the estuary. This was brought to the judge's attention during the hearing. Ecopravo-Lviv also has requested the local prosecutor to investigate the situation.

After two days of hearings, Judge G. ruled in favor of Ecopravo-Lviv and ordered the ministry to require the company to cease work on the project. The court exercised its authority under the Law on Environmental Expertise to find the conclusions of an expertise invalid when procedural requirements are violated. The court found that the environmental impact assessment statement was published two months after the expertise was completed, in violation of the public's rights to be informed and to participate in the expertise process.

The ministry had argued that its failure to publish the EIA statement did not affect the outcome of the expertise because the public knew about the project. The court rejected this argument outright because the Expertise Law does not provide for substitution of the notice requirement. Without notice of the expertise, the court observed, the public could not fully take part in the process.

This case represents a landmark victory for Ecopravo-Lviv on issues fundamental to meaningful public participation in environmental decisionmaking. Not only does the decision uphold the basic principles of participatory democracy, it sends a clear message to governmental officials and citizens that public officials can be held accountable under the law for their actions. The case offers hope for citizens currently suffering violations of their environmental and civil rights, that with perseverance, those rights can be upheld.

MEPNS filed an appeal, and the Collegium of the High Arbitration court canceled the decision. Now Ecopravo is preparing for a new stage of the battle for participatory democracy.

Remedies

According to the Civil Procedure Code and Arbitration Procedure Code of Russia and Ukraine, civil or arbitration courts can adopt measures for injunctive relief at the request of the party or at their own initiative. Injunctions are acceptable at any stage of a case in which not adopting such measures might make the fulfillment of court decision impossible. Individuals and NGOs can obtain an interim or injunctive relief against enterprises. The most effective way to promote the suit in environmental cases is prohibition against actions that could be harmful to the environment and health or an order to stop environmentally dangerous activity.

A good example of an injunctive relief case is the above-mentioned terminal case, in which the construction of chemical fertilizer terminal was stopped by a court decision even though it was a difficult decision for the judge because significant funds were invested in the project by the time the case reached the court.

Another example of injunctive relief is the court order to stop construction of a landfill in the middle of the Russian North National Park. The lawsuit was initiated by the Russian Socio-Ecological Union and prepared and filed by the environmental law NGO Ecojuris.

Temporary or permanent injunctive relief is not specified in the legislation of Belarus. In Armenia and Moldova, if a party to the case asks for injunctive relief, the court can order the arrest of the property and money which belong to the defendant, prohibit the defendant from carrying out certain actions, prohibit other persons from giving property to the defendant or from implementing other obligations related to the defendant, suspending the sale of the property arrested in case of suing against its arrest, and other provisional measures.

The difficulty for implementation of injunctive relief is that according to the legislation of the observed countries (except Armenia), the court can oblige the plaintiff to make a bond which would guarantee compensation of damage which could be caused to the defendant by the injunctive relief (i.e. lost profit and benefits, fines for prolongation of terms, etc.). Usually, these possible losses by the defendant in environmental cases are huge, and average plaintiffs, especially citizens or NGOs, do not have enough money to deposit such a bond. This makes the provision a "paper rule" and the access to justice becomes impossible for public interest NGOs and citizens. In many cases it leads to discrimination of public interest and the loss of the court litigation "object" (i.e. the trees are cut, natural resources are exhausted, biodiversity is irreversibly lost, environmental systems are destroyed or the environment is polluted).

Court Expenses/Litigation Expenses

The price of legal proceedings is a major obstacle to environmental cases in the NIS. NGOs that bring a case have to pay at least the state duty up front, and then they must win the case because they cannot afford to pay huge court expenditures. For example, in the case called "Sosnivka," the NGO Ecopravo-Lviv attempted to bring a case to arbitration court on behalf of mothers whose children suffered from fluoride pollution of drinking water. The state duty for the case, which totaled GRV 9,000 (about USD 4,500), made access to justice unaffordable. According to the Arbitration Procedure Code, it is impossible to waive payment of state duty even for an NGO that is trying to defend environmental rights of citizens. As a result, the number of sick children has grown from 600 to about 3,000, and the pollution and aggravation of diseases has also increased.

Some groups of individuals and legal entities are released from paying taxes and fees. For instance, in Ukraine these are the citizens who suffered from the Chernobyl disaster; disabled veterans of the Great Patriotic War and families of soldiers who died or are missing in action; state and public bodies, enterprises, institutions, organizations that are applying to the court to defend other people's rights and freedoms; all Ukrainian and international unions that have local offices in the majority of regions; and unions of disabled people.

Citizens seeking compensation for health damage are not required to pay court fees in Belarus, Russia or Ukraine. Also, in Belarus, NGOs and citizens appealing against the infringement of rights of other citizens are not required to pay court fees.

The legislation of Armenia and Moldova does not provide any privileges or exemptions. However, depending on the financial conditions of parties, the judge can give an advantage to a party in paying court expenditures (i.e. excuse them from paying costs or reduce the amount or rate of the cost). Nevertheless, in practice, judges rarely use this right.