Citizens as individuals or as a group have the right of free association, the right to a healthy environment, the right of information, the right of peaceful and unarmed assembly, and the right to lodge petitions and complaints.
The right of free expression is also constitutionally provided under Art.39 of the Constitution. Until now, there have been no cases reported where this right has been violated. However, in July of this year, the socialist majority in parliament voted for a modification of a law regarding the local elections to be held in Autumn 1995. This is an attempt at preventing journalists and speakers from expressing an opinion on the parties, coalitions and candidates. These dispositions of the new law were taken to the Constitutional Court by a group of opposition United Democratic Front Members of Parliament (MPs).
The right of access to information as defined in Art.41(2) of the Constitution is limited in cases where information is considered an official or state secret or where information affects the rights of other persons. The notion of "state secret" is clearly defined in an official list of data (This list was published in the Official Journal No 31/1990.) Until now, there have been no reports of a request to obtain information being rejected on the grounds of this article of the Constitution.
Unfortunately, interpretation is not clear and precise enough. There are no legal precedents as to what "rights of other persons" means exactly, but in Bulgarian legislation there are several provisions where the notion of "trade secret" is used. These are: the Code of Commerce, the Patent Law and the Law for the Protection against Disloyal Competition (see annex). The definitions of these regulations are so wide and vague that they undermine the constitutional right for information. However, no cases are known where access to information has been denied due to this interpretation.
In Bulgaria there is a Constitutional Court, but the Constitution does not provide for citizens or groups of citizens the right to petition the Constitutional Court for review. In Bulgarian legal tradition, people are not accustomed to base their legal actions directly on the Constitution. However, citizens, citizen groups and NGOs often use indirectly their basic constitutional rights when organizing actions - the right of free association, right to information, the right of peaceful assembly, the right of free expression and the right to petition.
At the same time, the right to call a national or local referendum are provided for in the Constitution (Art.10), but unfortunately the legal regulation of referenda is obsolete and the public can hardly use it. The most important issue, namely topics which may be subject to a referendum, are not clearly defined. In a recent amendment (July 21, 1995), the legal field for local referenda is restricted to questions of "local importance" in Local Government and Local Administration Law (Art.11 and Art.17, modification: OJ No 65/1995) Thus, in the new text, the possibility for the public to call a local referendum for questions of national or local importance, such as plans for a nuclear power station or chemical plant, has definitely been limited.
No constitutional provision or law gives rights or guarantees to the public to participate in the legislative deliberations or rulemaking of parliament and the government. There are at least four parliamentary commissions dealing with some aspects of environmental protection: the Environmental Commission, the Local Self-Government Commission, the Energy Commission and the Commission for Agriculture and Forestry. Occasionally, parliamentary commissions hold public hearings or consultations on specific issues, but generally few NGO experts are invited, and usually only due to their expertise in some specific field and not as representatives of the public.
In principle, public participation in parliamentary activity is possible, since the sessions of these commissions are accessible to the public, but those who wish to attend these meetings must be announced to the MPs at least 24 hours before the beginning of the session. (-Art.26 of the Regulation on the Activity of the National Assembly /OJ No 13/3.II.1995/.) Also, commissions can decide on closed sessions.
These are practical obstacles hindering the public from participating in parliamentary decisionmaking. Normally, access to the National Assembly (NA) building is by invitation only, as is attendance to a parliamentary commission. MPs have post boxes where anyone can address messages, but these boxes are situated within the NA building.
Public participation in the governmental decisionmaking process is also underdeveloped. Occasionally, NGO representatives are invited to take part in discussions concerning draft laws or policy documents. However, this practice is ad hoc and more the result of personal contacts than that of a legally institutionalized mechanism.
At the local government level, public participation can be substantial. The Local Government and Local Administration Law (LGLAL) provides the possibility for local councils to regulate questions concerning the environment within their jurisdiction (Art.21 of the LGLAL - OJ 65/21.VII.1995/). However, the regional governor may ask the regional court to declare the local regulations "contrary to the law". Recent changes in the law allow the regional governor to exercise control over regulations adopted by the local council (Art.71/5. of the LGLAL.) The notion "contrary to the law" can mean not only "contrary to the LGLAL", but "contrary to the law in general", thus limiting this "good practice" at local level.
There are several municipalities which have established such local regulations regarding environmental issues and public participation, such as Trojan, Botevgrad and Viddin. These regulations concern water quality and management issues, reporting requirements for industry, access to information by the public, protection of animals, noise, etc. but in fact there is a wide range of issues which could be covered, allowing the authorities and the public more efficient control over environmental protection. A good example has been set by the Botevgrad municipality, where a local ecological inspection was established at the initiative of the public and NGOs. The voluntary position later was transformed into a permanent one and there are already several small towns where they have been set up. Local ecological inspectors have the right to discover, explore and document violation of environmental regulations and report to the mayor, who can then sanction the violators. This system seems to be efficient and more and more municipalities are following this example. Ecological inspectors work closely with the public and NGOs.
The Constitutional Court also has the right to allow a party in a legal case to submit a written opinion in an already created case, giving NGOs another possibility to defend environmental issues.
There is no Ombudsman or Parliamentary Commissioner which could serve as a remedy in case of infringement of human or constitutional rights, as in other countries.
Standing in administrative procedures is defined in a different way, depending on how recently the procedure was adopted, but generally the definition is whether a person has a legal right to participate in court proceedings and/or administrative procedure. The most liberal provisions on standing are provided by the 1992 EIA procedure, and these include the right to appeal decisions in the administrative court. Citizens and NGOs can use this provision to directly prove their legal right to stand. Standing under EIA procedure is given, in principle, to anybody who represents "the public" and is often used. However, as yet, there have been no cases where non-local NGOs have tried to stand and to appeal a decision concerning a local issue. The question as to whether an NGO with national structure has the right to appeal decisions that have local significance, has yet to be addressed.
In the case of all other laws and regulations, standing in administrative process is not yet defined. In Bulgaria, the administrative process is not as developed as in the Central European ex-communist countries - Poland, Hungary and the Czech Republic. In the past, appeal was limited to only a few administrative decisions and therefore there is no practice with regards to appealing administrative decisions concerning the environment, such as permits, projects, planning decisions.
Standing in civil process is regulated by the general principles of the civil code in force, that is, a person must have a legal interest to start a procedure. A legal disposition must provide that the person has a right. If this right is violated, then the person is legally entitled to start a case.
Citizens and NGOs have a strong tool in their hands in the form of Art.29 of the Environmental Protection Law (EPL), which provides an excellent possibility to ask the court to stop any illegal activity causing harm to the environment. In addition, Art.30 of the EPL states that associations, citizens or an injured party may request the court to order any dangerous activity to cease forthwith. As there are many polluters that do not have the necessary permits or licenses, citizens and NGOs can refer to Art.29 and Art.30 to petition the court to halt damaging activities, although this possibility has not been used in practice as yet.
The position of the court strongly influences the public's view of the rule of law. Traditionally in communist and also in post communist societies, judges have less power than the executive power. Judges do not have at their disposal the right to administer quick removal of pollution at the polluter's expense and their heavy workload means sessions in court can often be more than six months apart, with a normal case not being completed in less than two years. There is also no law regulating the situation of the state official - their rights and duties.
There is, however, the Regulation on Administrative and Legal Services (No 2472/1985) - the only regulation that provides rules for such "administrative services." Penalties are very small, but such a regulation can be the basis for suing the state for damages in a case where the damages are caused by illegitimate acts committed by state agencies or officials (Art.7 of the Constitution.)
It is four and a half years since the adoption of the new Constitution, but it seems that the present governing coalition is not interested in adopting an access to information regulation. It is also true that this kind of regulation would require a good relationship between the ministries covering different aspects of environmental protection, but in reality the interests of "non-environmental ministries" usually differ from that of the Ministry of Environment. Presently, there is insufficient public pressure on the "political classes" to force them to establish the necessary regulations.
It is not even clear at which (parliamentary or governmental) level such a regulation must be adopted; and whether it should be a Law or a Regulation on Access to Information. The Constitution adopted in 1991 does not provide the possibility for the Ministerial Council to regulate a matter if there has not been a stipulating law. Legal experts are divided over this issue. The EPL does not transfer power to the Ministerial Council to create access to information regulations, but it is not clear whether a change in the EPL is necessary.
While the active right to information is not developed at all, the passive right to information cannot be used either due to the lack of access to information procedures. In general, access to information depends greatly on the public authority's capacity to obtain information from polluters, but in Bulgaria the public authorities (and in general public power) are not as strong as in developed democracies. For example, there are no officially known, and publicly accessible lists of data which are given to the central state administration by polluters. However, there is a chance to establish such a regulation at local level by the municipal authorities.
There is a right of information according to which any citizen or group of citizens has the right to access the documentation of the EIA report. Public discussion of the EIA report is obligatory, and the public is involved in the decisionmaking process, with the possibility of proposing alternatives and through external experts that take part in the preparation of the final decision. Using these provisions, citizens and NGOs can directly prove and convince their legal interest of standing in an EIA procedure. Their participation is based on the assumption that the law does not give them the right to be informed, the right to lodge proposals, and the right to discuss the project, without the right to appeal the decision. Besides the question of who can stand in such case, the right of appeal in the EIA procedures is also recognized by the law.
At the same time, there are two problems which highly endanger the real functioning of public participation and the use of EIA in practice. Recently, an amendment has been made to the Environmental Protection Law, which provides the possibility for promoting projects without EIA in cases where the "vital interest of the population are at stake." This change was adopted by Parliament and opens the door to arbitrary administrative actions. The amendment of the law has been appealed at the Constitutional Court (CC), but judged constitutionally correct for reasons not yet specified.
The other problem is related to the notion of a "preliminary" EIA statement, introduced by a regulation issued by the MoE. This notion was created to make the assessment of projects easier, the contents of which are too general in the beginning and require another EIA once in the second stage of their development. The environmental administration has started to apply this regulation in practice "contra legem", and as a result, several regional inspectorates do not submit the preliminary EIA statement for public discussion. At least 15 such instances have been reported here, however, the possibility to make an appeal by any citizen or NGO against an administrative decision taken without public discussion of the EIA statement, is given by the law. The public can base their argument directly on the Environmental Protection Law, which takes priority over the MoE Regulation. Yet, if there is no appeal, there may not be proper public participation. A new EIA regulation is being prepared now at the MoE.
Public participation can also be exercised through other, less effective, but existing procedures. For example, Art. 24 of the Nature Protection Law provides that NGOs and citizens can make proposals for declaring an area a protected area. Thus, the legal interest at least for asking information about the protected area is defined, and normally there should be no problem with practicing this right. Art.15 of the Water Use Regulation stipulates that: "before issuing a permit for the use of water, the administration should receive the written opinion of the interested parties". Any NGO wanting to protect a water supply can appeal the administrative decision based on the fact that it had submitted it's opinion as an "interested party". Art.27 of the 1989 Regulation on Sanitary Areas Around Water Supply Sources and Waterpipes provides the right of participation to "interested organizations and persons" in the committee that prepares the list of conditions for using the watersources and waterpipes.
In the Air Protection Law and in the law on the Use of Nuclear Energy there are not special procedures for public participation, similarly to other laws and regulations such as: building and construction law; law on physical, territorial and spatial planing; land use law; privatization law; civil code; criminal code. However, many activities, regulated by these laws are subject to EIA and the EIA procedure can be used.
The second group of regulations was adopted some ten or more years ago and in general do not contain dispositions for public participation or guarantees for public participation. Examples are the Nature Conservation Law, Air Protection Law and Water Management Law.
The existing regulations provide possibilities for the public to participate in various fields, but in practice, the public is not aware of this. On the other hand, the authorities very often do not act according to the adopted regulations. For example, very few NGOs are aware of the Regulation on National and Local Ecofunds, which facilitate raising revenue for environmental investments, There are reported cases where the mayor has ordered the spending of such local funds in absolute violation of the regulation and according to one study, the local environmental inspectorates do not publish most of their decisions, though this is a violation of the requirement of the Environmental Protection Law and could be cause for nullifying the EIA decision once the decision is appealed in court.
Another factor is the lack of basic general legal mechanisms, such as regulation on state officials and access to information regulations. One very strong obstacle which discourages NGOs is that in environmental protection there is a very strong interdependence between different legal and social institutions and one small tool missing can render the whole initiative useless.
These problems can be illustrated with the aforementioned Art.29 and Art.30 of the EPL, which gives great power to NGOs and citizens in providing a possibility to request the court through a petition to halt activities damaging environment. However, this tool is not used by the public and NGOs because firstly, there is no regulation for access to information that assures the initial basis for such an action, and an NGO or a citizen has no legal guarantee even to obtain information concerning whether the enterprise has or has not a permit to exercise the polluting activity. Secondly, there is no law protecting the status of the state official who provides information, such as a confidentiality clause, thus endangering his/her professional position. Thirdly, the procedure would last too long - cases are completed in no less than two or three years and the periods between two court sessions are often between three to six months. Fourthly, as most of the property is state run, in the minds of the judges, the interest of the state at any price is stronger than the interest of the environment.
Finally, we should mention that environmental legislation is taught at university in the second or third year and most judges (80-90 percent) have not only never studied modern environmental law and regulations, but have no opportunity of doing so. The independence of judges is a very delicate issue. According to the Constitution, civil society has not yet developed its structures and the position of judges is not secured against politically motivated, arbitrary behavior. There is also no legal and institutional witness protection program, causing reluctance to initiate legal proceedings on the part of citizens and NGOs.
The only efficient instrument in the hands of the public is the EIA regulation, which is also the most frequently used legal public participation tool because it gives the most precise and concrete rights with the most detailed provisions and procedures. The constitutionally guaranteed basic rights are also often used, mainly through concrete actions, such as the right to free assembly and the right of free expression.
The most important missing legal instruments in the Bulgarian environmental legal framework are the access to information law, a permit and licensing regulation, a waste management law and a land use law.
There are also some basic general legal mechanisms that are missing such as an effective mechanism for the independence of judiciary ; guarantees for quick and effective procedures, a witnesses protection program and an independent, environmental ombudsman.
In a court case in Mirkovo, near Sofia, the local Inspectorate acted improperly in not issuing a decision in the right form, and on this basis, the mayor issued a construction permit. The public proved that the competent authority to complete the EIA procedure was not, however, the local regional Inspectorate, but the Ministry. Meanwhile, the mayor was obliged to repeal his construction permit and the MoE obliged to complete the EIA procedure. At present, the case has yet to be finalized.
Another court case reported by Ekoglasnost, an NGO, concerns a local referendum in Svishtov in Northern Bulgaria concerning the construction of a nuclear power station. The referendum was declared illegal by the court on demand of the regional governor, who qualified the subject of the referendum of national importance. Thus the local community would have no right for referendum.
Amongst positive public participation practices based on the use of legal tools, the civic disobedience in 1989-1990 is a good example. Citizens and NGOs played an important role in changing the previous regime. In Plovdiv, in 1992, the lead and zinc smelter was reconstructed as a result of renegotiation due to public pressure.
Unsuccessful instances include the recent amendment to the Environmental Protection Law regarding EIA which NGOs tried to block through actions based on constitutional rights. MPs, including the President and the Constitutional Court, recognized the passive attitude of a public that was shy of using opportunities for public participation provided by the regulations. In fact the government realized and changed the regulations. In July 1995, the Constitutional Court refused to declare the amendment unconstitutional, which excludes the EIA in certain situations. There, the majority of the public, as well as the media, could not rally behind the idea that the amendment is a violation of the constitutional right to know.
Preparations for the Sofia Ministerial meeting brought a new, coordinating role and a unique lobbying opportunity to Bulgarian NGOs, both on a national and international level, which will hopefully strengthen cooperation within the NGO community.
The progress of the NGO movement is greatly hindered by the 1951 law on non-profit organizations and the lack of dispositions regarding the rights of NGOs to be involved in the governing process. The overall importance of the NGO contribution is not generally recognized.
In the political structure, environmental NGOs are represented both in the governing Socialist Party and the main opposition party, the United Democratic Front. However, recent events prove that parliamentarians from the governing party are not acting as members of an ecological movement, but more as members of a political coalition in that they supported the recent changes in the Environmental Protection Law, which resulted in restricting the EIA procedure. MPs from Ecoglasnost-Political Club, who are in coalition with the Socialist Party, did not protest when the government sent police forces to deal with protesters in a village near the Rila mountain. The public were protesting against a project which the government has not made EIA, despite this being obligatory at that time under the Environmental Protection Law.
NGOs are invited to participate in some governmental bodies and committees that discuss strategic environmental issues, environmental policy documents or draft laws, but this is not widely publicized. In one case, prior to a national seminar organized by the MoE to discuss the Environmental Action Program for Central and Eastern Europe and its implementation on national level, NGOs were refused access to the documents, though they were invited to discuss the issues.
In the MoE, there is a section responsible for relations with the public and NGOs, but it is difficult to evaluate due to a lack of comprehensive information. A representative from this department is always present at initiatives organized by NGOs and there are officials who have a good, personal relationship with many NGOs. Also, an information center within the MoE prepares a daily and weekly bulletin regarding basic environmental data, although this is only available to visitors to the center.
At the local level, relationships between NGOs and authorities are probably more regular and direct, but still remain ad hoc in most cases. There are to be found, though, several examples such as the aforementioned zinc and lead plant near Plovdiv, where air protection devices were bought and installed due to public pressure.
The media could help significantly if it supported more pressing environmental issues and promoted public participation. Though there have been some sporadic attempts to use green newsletters for environmental education, public awareness and dissemination of information through the media - the most important areas for NGO's and citizen's activity - needs to be strengthened.
NGOs prefer so-called "international" projects because the money is directly given to the NGOs by foreign foundations or programs and are more lucrative than regional projects. Very often these projects involve foreigners as teachers or facilitators and are "safer" because they do not oppose power and authority as, for example, a demand for information with appeal to the court would. Such is the case with the Water Management Program for the river Yantra, developed by the Environmental Management Training Center (EMTC). Most international programs are linked with education and nature protection, probably because Bulgaria has signed the Bern Convention for the Protection of Wildlife. Bulgaria also has an eye on the tourist market.
It is difficult to assess the effectiveness of educational programs and projects promoted so far, although it seems there are several criteria for their success. First, education should be followed by practical steps. Second, the number of "teachers" who disseminate further knowledge must grow. And thirdly, the general social activity of educated persons must be higher following the education process. Based on these criteria, we may say that though many of the educational programs are considered successful, in several cases there are no follow up actions or activities where success could be measured in practice, and also there is not enough support or motivation for those who have already been educated or trained in a specific field to develop further.
Consultations and public hearings related to pollution problems or EIA procedure can be organized, even by non-formal means, but are not very characteristic in Bulgaria. Joint decisionmaking is also rare. There are, however, community development projects in several towns where there is strong public involvement in the organization of environmental actions - setting environmental priorities, and elaborating future development plans which can be evaluated as examples when decisionmaking power is shared with or transferred to the public. These projects have been mostly initiated and funded by either foreign NGOs or foundations (Institute of Sustainable Communities, Environmental Training Project). A new development is that these examples have been taken over and followed by several other municipalities, who have continued the projects independently.
At governmental level, according to national statistics, there have been 27 cases in the last year where EIA decisions have been challenged.
Challenging efforts are stronger at the level of local government where the public and NGOs are more directly involved in the decisionmaking process. There is no information about attempts to challenge the acts of private or legal persons and business activities. Industry is predominantly state run.
Another such case is Sofia, which receives water from the Iskar dam, situated to the south-east of the city. The dam takes it's water from the river Iskar coming from the Rila mountain. Constructed in the 50s, for the last 10 years the water level has dropped significantly, but there has been no official reaction from the city or the central authorities. A little before the change of regime in 1989, there was a protest concerning a proposal to take water from the river Mesta to Sofia. This project was suspended, but still there was no official discussion regarding the Sofia water problem. In the autumn of 1994, the press announced that the Iskar Dam's water level was near the bottom and that the drinking water in Sofia contained very high levels of heavy metals. It was suggested that the construction of the water supply project, Djerman-Skakavitza, would bring water to Sofia from the Rila mountain, but NGOs in environmental protection objected to the project on the grounds that the project Djerman-Skakavitza was not yet submitted to the obligatory EIA procedure and that since the project provides for taking water at high level, it would damage the flora and fauna in the zone. It is not clear who the main "consumer" of Sofia's water is - there is no information concerning the main industries that consume water from the Iskar Dam.
These very reasonable and concrete arguments were never covered in the media, and if they were mentioned at all, it was always with the great bulk of other, more "spicy" information. Finally, the government sent police troops to overcome NGO activists who had blocked the road. Nobody explained the absence of EIA procedure. Later the EPL was changed and it was provided that for projects of "vital importance" the EIA study can be made later, although 'not before the beginning of the construction'.
In the non-formal field, the biggest achievement is that there is a relatively strong ecological movement with many educational efforts. The circle of activists is not wide, but they are trying to make an impact by using several different tools of public participation and there are certain issues on which all NGOs are of the same opinion, creating a climate of confidence.
In the non-formal field, the major problem is the political division amongst NGOs at a time when even the simplest legal conditions for NGO activity do not exist. There have been several environmental conflicts, where NGOs organized protest actions, but the issues were highly politicized, leading to their division and failure. The lack of coordination amongst NGOs obviously seriously hinders efficiency, and due to the lack of legal basis, even non-formal initiatives risk being misinterpreted.
NGO activists are a relatively small group who are all in full time employment, with insufficient part-time volunteers. In some cases such as the application for a grant, NGOs tend to "compete" with each other rather than "cooperate".
The different interest groups see the major problems sometimes in absolute contradiction to each others opinion. The government complains about the passivity of the public and the lack of interest in participation. They would provide information, they say, but the public and NGOs do not ask for it. However, the authorities do not always want to see NGOs acting in the political field. Very often the interest of the central, local administration is to be free of public involvement. In the last three years, there have been no favorable initiatives in the environmental field which would provide pubic participation, due to the government's initiative.
The public is especially interested in environmental issues if they directly affected by pollution, negative consequences of development projects, or industrial programs. Unfortunately, there are very few specialists who are familiar, legally and scientifically, with the correct way of defending public rights. Cooperation between the public and NGOs is not always good and it is especially difficult to mobilize the public on national level issues.
In Bulgarian society there still exists a climate of mistrust and the incomplete legal system does not provide the tools for having at least some success in public participation, while the lack of fundamental legal tools can block all initiatives. The public, however, as well as administration, are not always inclined to base their actions on the law.
An area which is absolutely missing is the tradition of dialogue and cooperation with private business in order to convince them to be more open and use good practices of public participation methods. This could be a task both for the authorities and the NGOs.
For its part, the business community needs to understand the benefits of public participation in its decisionmaking and to start using cooperative methods with the authorities, the public and NGOs.
In the legal field, the main direction should be the adoption of missing legal acts and to promote the concept of the law as a measure of officials and people's activity. While in the non-formal field, the main task is to raise public awareness regarding public participation by first explaining the main goal of the actions for public participation, and the importance of the action for concrete legal or non-legal development. In the non-formal field, attention should be drawn to the assessment of governing bodies attitude and the ways in which they can be influenced.