Slovenia

I. Introduction/Recent Political Context

The "forgotten" part of the former Yugoslavia, Slovenia has garnered less international attention and has been subjected to less scrutiny than expected by most observers. Slovenia was originally predicted to be quickly and quietly enfolded into Western Europe, but the worldwide recession and association with the war have inhibited investment in the most developed of the republics of the former Yugoslavia. With little encouragement and less fanfare the country has gone about the process of transformation with careful deliberation, since adoption of its new Constitution in 1991. Many Slovenians are frustrated with the pace of reforms, others feel that not enough attention is being given to those displaced by too rapid change, but all feel lucky in comparison to their former fellows to the east and south. It may be expected that environmental protection, and perhaps public participation in environmental protection, will be an increasingly important issue in Slovenia as its national identity, so closely linked with its natural resources and striking beauty, is allowed to develop.

On the environmental law front, a new framework environmental protection act was adopted in June 1993. It is too early to see significant changes in decisionmaking practices or significant developments in the public's use of new legal mechanisms. Local observers describe the level of environmental awareness in Slovenia as "passively high and actively low."

II. Legal Structure and Legislative Process

A. Constitution

The Constitution of the independent Republic of Slovenia was adopted in June 1991.

1) Basic Rights and Obligations

a. Right to Healthy Environment
Article 72 provides in pertinent part:
Each person shall have the right in accordance with statute to a healthy environment in which to live.
The State shall be responsible for such an environment. To this end, the conditions and the manner in which economic and other activities shall take place shall be regulated by statute.
The conditions under which any person damaging the environment shall be obliged to make compensation and the extent of that compensation shall be determined by statute.

b. Right of Expression
Article 39 guarantees freedom of expression of thought and of speech.

c. Right to Information

Article 39 also provides:
Except in such circumstances as are laid down by statute, each person shall have the right to obtain information of a public nature, provided he can show sufficient legal interest as determined by statute.

d. Right of Free Assembly
The right of peaceful assembly and to participate in public meetings is guaranteed by Article 42, subject to limitation for reasons of national security, public safety, or to guard against the spread of infectious disease. Article 39, primarily concerning freedoms of expression of thought and of speech and access to information, includes the guarantee of freedom to "associate in public."

e. Right of Association
The right of association is also guaranteed by Article 42. The limitations mentioned in the previous paragraph also apply to the right of association.

f. Right to Petition
Article 45 guarantees the right to present petitions to authorities.

g. Government's Relationship to the Citizens
Article 3 of the Constitution provides that "supreme power is vested in the people."

Article 159 of the Constitution establishes the office of Ombudsman, whose duty is to represent the interests of protection of human rights and fundamental freedoms in matters involving national and local authorities.

Finally, Article 44 provides:
Each citizen shall be entitled, subject to statute, to participate, either directly or through his elected representatives, in public affairs.

2) Right to Petition Constitutional Court for Review

The Constitutional Court is established under Article 160 of the Constitution. Under Article 162, standing to bring an action before the Court is granted to any person who can show a proper legal interest, as determined by statute. The statute governing the Constitutional Court, which would define the proper legal interests that may satisfy the requirements of Article 162, has not yet been adopted.

a. of Law or Rule
Conformity of laws, regulations, local ordinances, etc. with the Constitution and with international agreements and general principles of international law may be the subject of review. Const., Art. 160.

b. of Action of Official
Complaints of breaches of the Constitution with regard to individual acts infringing human rights and fundamental freedoms may be reviewed by the Court under Article 160 of the Constitution.

Article 157 of the Constitution provides in pertinent part:
If no other legal redress is provided, courts of competent jurisdiction shall also be empowered to decide upon the legal validity of individual activities and acts which infringe the constitutional rights of the individual.

3) Other Remedies

Article 15, paragraph 4 of the Constitution provides that human rights and fundamental freedoms, including the right to obtain redress for abuse of such rights and freedoms, shall be given judicial protection. Furthermore, Article 25 grants
a right of appeal and a right to any other legal redress in relation to the decision of any court, government body, local government body or statutory authority which determines the rights, obligations or legal entitlements of such person.

Article 26 gives citizens the right to compensation for damages suffered by persons by reason of the wrongful performance of duties carried out by governmental authorities.

B. Legislation and Rule-Making

The National Council, established under Article 96 of the Constitution, is a body whose purpose is to represent social, economic, trade and professional, and local interests in the political process. The Council is made up of 40 members, six of whom shall be representatives of non-governmental organizations. An additional 22 members shall represent local interests. A further statute shall regulate the election and organization of the National Council. The Council has power, inter alia, to propose legislation to the National Assembly, to cause the Assembly to reconsider statutes prior to their proclamation by the President, to call a referendum, and to call for the establishment of a Parliamentary Inquiry into a matter of public importance.

1) Constitutional Provisions

Under Article 89, rules of legislative procedure are to be enacted by the National Assembly.

A proposal to amend the Constitution may be put forward by no fewer than 30,000 voters. Any proposed amendment to the Constitution may be the subject of referendum if so moved by at least 30 Deputies of the National Assembly.

2) Right of Initiative

A petition of at least 5000 voters shall initiate the consideration of legislation in the National Assembly, under Article 88 of the Constitution.

3) Right of Referendum

A petition of a minimum of 40,000 voters is required to call for a mandatory binding referendum on any issue which is the subject of regulation by statute. Const., Art. 90.

4) PP Provisions in Laws

The Environmental Protection Act establishes an Environmental Protection Council, somewhat analogous to the National Council discussed above. See Arts. 90-91. The independent 11-member council shall include representatives of NGOs. The Council is responsible for delivering information to the public about issues relating to environmental law and policy. It is also empowered to deliver opinions on such issues. Additionally, the Council may propose motions or submit opinions to the Ombudsman.

5) PP in Parliamentary Practice

As the vast majority of lawmaking has been on the Government level up to now there have been few opportunities for the public to participate in the Parliamentary legislative process. Parliamentary committees may hold public hearings and may allow interested associations and individuals to assist in drafting bills.

6) PP in Governmental Practice

The governmental lawmaking process includes a consultation process wherein interested governmental authorities have the opportunity to give comments on draft laws. At the same time other quasi-governmental institutions, such as scientific academies, university faculties and government institutes, are generally asked to review draft laws. Occasionally this process may be expanded to include interested members of the public or non-governmental organizations. The government is under no obligation to make draft laws public, however, and in many cases the responsible authority wishes to avoid leaking the draft to the public and therefore refuses to widen the consultation process.

7) PP on Local/ Regional Government Level

The Constitution allows citizens to join together and form self-governing local bodies "to further their common interests." Art. 145. From the text of the Constitution the relationship between such bodies and local and municipal governments is not clear.

Local authorities are expected to have slightly increased power over decisionmaking affecting their jurisdictions as a result of a current initiative for reform of the system of local government. Under the present system local governments have no inherent powers, and exercise authority only over matters delegated to them by the central government. The new law, expected to be adopted by the beginning of 1994, will establish many new local governmental units, and will grant to the local governments a few original competencies. One of these competencies will be matters of environmental protection within the unit of local government.

8) Remedies

With respect to the Constitutional provisions concerning initiative and referendum, recourse would be to the Constitutional Court. As public participation in lawmaking is not mandated by any law, it is difficult to imagine a successful court action if the Parliament or Government refuses to include the public in the lawmaking process.

C. Right-to-Know and Freedom of Information

1) Constitutional Provisions

Article 39 of the Constitution provides:
Except in such circumstances as are laid down by statute, each person shall have the right to obtain information of a public nature, provided he can show sufficient legal interest as determined by statute.

2) Laws

Article 14 of the 1993 Environmental Protection Act provides:
(1) The information concerning environmental conditions and changes, the procedures and activities of bodies of the State and the Local Authorities, of the parties involved in the delivery of public services, and those with public authorizations relating to the environment shall be open to the public.
(2) The parties of the preceding paragraph shall inform the public and provide information to interested individuals and organizations in the prescribed manner not later than one month of the request for such information and at a price which may not exceed the material costs of providing the information.
(3) Any party whose business operations should in any way or form strain the environment shall provide public access to the information concerning such environmental strain as they may cause in the manner specified in the preceding paragraph through the competent department of Local Authorities...

The EPA, Article 46, establishes the independent Institute for Environmental Protection to function, inter alia, as a citizens' service for environmental protection, an independent information service, and a link with foreign NGOs.

Under Article 68 of the EPA, the State must establish a monitoring system and must make available to the public "information about the results of monitoring and related warnings" through public media and other means.

An environmental protection information system is established under Article 73 and an annual national environmental report must be prepared by the Ministry, adopted by the National Assembly and published pursuant to Article 75.

3) Procedures

Legal persons responsible for environmental "strains" must appoint an environmental protection officer under Article 41 of the Environmental Protection Act. One of the duties of the environmental protection officer is to ensure the public access to and dissemination of the information required to be compiled and reported by Article 14. Each polluter must provide the name and address of the environmental protection officer to the Ministry and to the local authorities.

4) Reporting Requirements

Record-keeping is required by Article 42 of the EPA, with regulations to be promulgated by the Ministry at a later date. Self-monitoring is mandated under Article 70. The self-monitoring data is required to be reported to the Ministry under Article 71.

5) Remedies

According to Slovenian legal experts, it is established under Slovenian law that one must have legal standing to be able to demand access to information. Environmental information is therefore available not to the general public but to the "concerned" public. Up to now there has been no official standard by which to judge legal standing, and there is no legal or practical definition which can be applied in all cases.

Persons seeking redress for a failure of authorities to give information when required may attempt to base their claim on the Constitutional right of access to information, in which case they may seek recourse to the Constitutional Court or through the Ombudsman. Other claims must be submitted to the general administrative process, unless misconduct issues arise, in which case the special rules set forth in the EPA apply.

Those special rules consist of the penal provisions of EPA, Article 100. They include the imposition of fines of not less than 100,000 tolars for:
failing to ensure public access to the information concerning such environmental strain as [persons] may cause themselves.

Other provisions apply to failure to appoint an environmental officer and failure to meet recordkeeping and reporting requirements. Fines (of not less than 10,000 tolars) may also apply to governmental officials for failure to meet the same obligations, although it is not clear how governmental officials could be held accountable for obligations that are imposed on a member of the regulated community.

Fines may be larger in cases where human life or health is threatened as a result of the offense.

III. Legal Process

A. Administrative Law and Procedure

1) Administrative Actions by the Public

The administrative law governs participation in administrative proceedings. Specific administrative remedies may be separately provided by statute. See, e.g., Article 15 (4) of the EPA, granting standing in licensing proceedings to potentially affected parties. Cases may be initiated by parties affected by any matter that concerns the competency of the administrative authority. Generally, decisions of lower-level administrative authorities are appealable to higher authorities and, in theory, to the highest levels of government. Final administrative decisions are reviewable by a court of law.

According to Slovenian legal experts, it is established under Slovenian law that one must have legal standing to be able to participate as a party in administrative proceedings. Up to now there has been no official standard by which to judge legal standing, and there is no legal or practical definition which can be applied in all cases. In the case of the EPA, legal standing in Activity (as defined) licensing proceedings is expressly granted to parties in the environmental impact assessment procedure if the decision on the matter discussed in the proceedings might encroach upon their right to a healthy and clean environment. See Art. 15 (4).

Constitution (Art. 120) guarantees
[t]he right to judicial review of the acts and decisions of all administrative bodies and statutory authorities which affect the rights and legal entitlements of individuals or organizations...

Furthermore, Article 157, pertaining to disputes as to administrative matters, gives to courts of competent jurisdiction the power to decide upon the legal validity of decisions of national and local authorities pertaining to administrative disputes and concerning the rights, obligations and legal entitlements of persons, "but only where alternative legal redress is not specifically provided by statute."

2) Intervening in an Ongoing Case

According to Slovenian legal experts, it is established under Slovenian law that one must have legal standing to be able to participate as a party in administrative proceedings. Up to now there has been no official standard by which to judge legal standing, and there is no legal or practical definition which can be applied in all cases.

3) Challenging Official Inaction

Article 26 of the Constitution provides a right of compensation for damages suffered by persons by reason of the wrongful performance of duties carried out by governmental authorities. In theory this provision should apply to inaction as well. Where a case is brought to force administrative action but there is no clearly definable damage from the failure to bring the case, the person instituting the demand must use normal administrative procedures. In such a case there may be difficulty establishing the party's interest to justify legal standing.

B. Public Participation in Environmental Protection Laws

The 1993 Environmental Protection Act (No. 801-01/90-2/107, 2 June 1993), places a deadline of 9 months from its coming into force (approximately March 18, 1994) for promulgation of regulations pertaining to those provisions of the EPA requiring further elaboration. See Arts. 101-103. Those regulations will further elaborate the general requirements contained in the law which are discussed below.

The Environmental Protection Act acknowledges a significant role in environmental protection:
for citizens and other members of the population, as individuals or organized in associations, professional and other organizations, and other non-governmental organizations for environmental protection ... [and] enterprises and their associations engaged in environmental protection activities...

Article 4, paragraphs 3 & 4. Furthermore, Article 7 of the Act requires any institutionalized approach to environmental protection to ensure "prior cooperation" among segments of society, including citizens and NGOs. Yet the law also states that solutions to environmental problems initiated by those responsible for the problems are to be preferred to institutionalized approaches, where such solutions are as effective as the institutionalized approach. Presumably, the law is seeking to promote efficiencies and encourage greater responsibility on the part of the regulated community by giving opportunities for investors and other similarly situated parties to use their greater familiarity with the situation and their greater interest in cost-saving to come up with innovative solutions to environmental problems. But there is no guarantee that the non-institutionalized approach will respect public participation to the same extent as the Act requires for the conventional process, and thus enterprises may be able to cut short the public participation process by this method.

Local authorities are required to ensure "cooperation and solidarity" in solutions for regional environmental issues under Article 7 (4) of the EPA.

1) Environmental Impact Assessment

Environmental Impact Assessment is required for a range of activities under Articles 55 through 63 of the Environmental Protection Act. In addition to being a part of the approval process for proposed activities, such as new construction of greenfields facilities and reconstruction of existing facilities, the EIA requirement also applies to facilities which continue to operate without any proposed changes.

Article 55 (3) provides that the environmental impact report shall be an integral part of the application for obtaining the license for an Activity (an activity affecting the environment, as defined in the statute, Art. 5 (1), 4.1). Public participation is the responsibility of the body deciding the licensing issue (Art. 59 (1)), and is governed by Article 60:
(1) The body ... shall ensure public presentation of the draft decision and the report ..., or of the entire project, if the report does not contain all the relevant information ..., and shall ensure its public discussion and a public hearing of the operator of the Activity.
(2) The public announcement including the list of concerned parties, the places and times of the presentation, the public discussion, and the hearing referred to in the preceding paragraph shall be published in public media and announced in the usual local manner. The public announcement shall also contain a summary of the environmental impact report with final judgment and the method of contribution of opinions and comments by the public. The duration of the public presentation shall not be less than 15 days.
(3) Irrespective of the provisions of the preceding paragraphs, public presentations, discussion, and hearing are not necessary in a renewed decision-making procedure which results from an adjustment to opinions and comments given during the initial public presentation.
(4) The body referred to in paragraph 1 ... shall announce its decision, including environmental consent, in public media within eight days of issuing the consent. The decision shall include a statement that the opinions and comments made during the public presentation, discussion, and hearing have been considered.

Public participation is not required for amendments to consents and conditions in licenses based upon changed environmental law or regulation. Art. 62.

Specific EIA procedures are required to be promulgated by the Ministry within 9 months of the passage of the EPA. Up to now these regulations have not been passed.

Whether the law establishes that ownership transformations, such as occur during the process of privatizing state assets, trigger the requirement for EIA is unclear. The Law on the Transformation of Company Ownership contains no provisions for EIA of privatizing companies. With respect to privatization the Environmental Protection Act, Article 9 (4), however, states that ownership transformations, transfers of ownership, restitution, bankruptcy, etc. shall include "an assessment and determination of the party under the environmental strain." It is unclear whether this provision will be interpreted to require a mandatory EIA process for every change in ownership. The article further mandates that any transfer of ownership shall also include settlement of existing liability claims.

2) Environmental Permitting

Environmental permitting under various medium-specific laws predating the passage of the EPA does not include public participation. The laws are slated for replacement by a new set of laws building upon the principles established in the framework environmental law. It is currently the intention of the Ministry that these future laws will contain few public participation provisions, for the reason that the EIA provisions of the EPA and the regulations that will implement them are seen as being the appropriate vehicle for public participation in decisionmaking.

The EPA contains at least one provision that offers opportunities for some affected parties to influence the decisionmaking process. Article 78 (3) requires proponents of certain categories of Activities (to be prescribed by future regulation) to show evidence of a settlement contract or pending lawsuit to determine compensation to injured parties for environmental injuries resulting from the Activities as part of the licensing procedure for such Activities.

3) Citizen Enforcement, Monitoring and Inspection Rights

Citizens have no extraordinary enforcement powers or monitoring or inspection rights under the EPA or other environmental laws currently in effect. Citizen involvement in environmental law enforcement is limited to conventional complaints made to competent authorities. Under Article 96 of the EPA enforcement is the responsibility of the Environmental Protection Inspectorate of the Ministry of Environment.

4) Remedies

As stated in Article 15 (2) of the Environmental Protection Act:
To exercise their right to a healthy and clean environment, individual citizens, their associations, unions, and organizations may file a suit with the court, demanding the termination of an Activity, if such an Activity presents or will present an immediate threat to the environment, a critical environmental strain or damage, or a direct danger to the life and health of the people, or demanding that the commencement of such an Activity be prohibited if the likelihood of the above-mentioned effects can be demonstrated with reasonable certainty.
Parties to an EIA proceeding may demand under Article 15 (4) to take part in Activity-licensing procedures if the decision on the matter discussed in the procedure might encroach upon their right to a healthy and clean environment.

The administrative appeals process and final recourse to judicial review is available where parties to administrative proceedings are aggrieved by decisions of officials.

Article 15 (5) provides that the ombudsman shall be responsible for protecting the citizens' Constitutional right to a healthy environment.

Article 15 should be read together with other provisions of the EPA stating general principles of liability to fashion appropriate remedies for violations of environmental protection rules. For example, Article 10 of the EPA establishes the general principle of restitution of the environment to its state prior to the effect of the environmental "strain." Where remedies are available under Article 15, the restitution principle may be used to request a court to order specific relief.

5) Liability

The general principle of liability for persons who cause damages to natural resources or who cause others to suffer damages by the environmental effects of their activities is stated in Article 9 (1) of the Environmental Protection Act. Establishment of liability shall be according to law, presumably meaning according to the requirements of civil procedure and based upon causes of action contained in the environmental law or other law including the civil code. Liability shall also apply:
(2) ... to a party who, through his illegal or incorrect action, has enabled or allowed the responsible party to excessively strain the environment. Financial liability shall also apply to the State and Local Authorities respectively, when under subsidiary obligation to act.

Furthermore:
(3) The party responsible for an environmental strain or his legal successor shall eliminate the source of pollution and the effects of his direct or indirect excessive environmental strain.

Article 10 states the general principle of requiring restitution of environmental values. These principles may be taken together with other laws, such as Article 15 above, to define the relief that may be sought by an aggrieved party.

C. Public Participation Through Other Laws

1) Land Use Laws

According to Slovenian legal experts, the new draft law on land use and urban planning will include publication of local development plans, with the right of individuals and organizations to give comments in writing and at public hearings. This law is being enacted in tandem with a new law on construction permitting which requires an initiator of a major project to consult with the public and to "gain consent" from the public prior to issuance of the permit. These laws have not yet been presented to Parliament as of the end of 1993.

2) Construction Permitting

See discussion in previous paragraph.

3) Civil Code (Liability) and Civil Procedure

The general principle of liability for persons who cause damages to natural resources or who cause others to suffer damages by the environmental effects of their activities is stated in Article 9 (1) of the Environmental Protection Act. Establishment of liability shall be according to law, presumably meaning according to the requirements of civil procedure and based upon causes of action contained in the environmental law or other law including the civil code. Liability shall also apply:
(2) ... to a party who, through his illegal or incorrect action, has enabled or allowed the responsible party to excessively strain the environment. Financial liability shall also apply to the State and Local Authorities respectively, when under subsidiary obligation to act.

Furthermore:
(3) The party responsible for an environmental strain or his legal successor shall eliminate the source of pollution and the effects of his direct or indirect excessive environmental strain.

Article 10 states the general principle of requiring restitution of environmental values. These principles may be taken together with other laws, such as Article 15 above, to define the relief that may be sought by an aggrieved party.

4) Penal Code

Specific penal provisions are included in the EPA at Art. 100. They include fines of not less than 100,000 tolars for:
failing to ensure public access to the information concerning such environmental strain as [persons] may cause themselves.

Other provisions apply to failure to appoint an environmental officer and failure to meet recordkeeping and reporting requirements.

Fines (of not less than 10,000 tolars) may also apply to governmental officials for failure to meet the same obligations. Fines may be larger in cases where human life or health is threatened as a result of the offense.

IV. Anticipated Developments in the Law

As mentioned above, the Ministry of Environment is under a legislative mandate to promulgate EIA regulations early in 1994. By giving substance to the public participation requirements of the EPA, the EIA regulations will represent a significant step forward in the ability of the public to participate in decisionmaking. At present there is no definite procedure for environmental impact assessments.

Also in progress are draft laws on land use and urban planning and construction permitting. Among the anticipated provisions of these laws are publication of local development plans, with the right of individuals and organizations to give comments in writing and at public hearings, and approval processes for major projects that require consultations and public "consent" prior to issuance of permits. These laws have not yet been presented to Parliament as of the end of 1993.

V. Case Studies on Public Participation
(including Public Actions)

Reportedly, although environmental awareness remains high, instances of non-formal public participation remain almost as rare as the nonexistent legal variety of public participation.

REC * PUBLICATIONS * MANUAL ON PUBLIC PARTICIPATION * COUNTRY REPORTS * SLOVENIA

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