Basic participation rights

* "Temporary" constitution
** Environmental Protection Act
*** State Administration Law, Journalists Law

Public participation institutions

Notes
(1) Exhaustion of civil judicial remedies required
(2) Appeal to civil courts available
(3) Law on Constitutional Court pending
(4) Potentially conflicting constitutional provisions
(5) For actions against the constitution by officials
(6) Position vacant
(7) On motion of Parliament
(8) On motion of President
(9) On motion of Mayor
(10) Subject ot geographic distribution requirements

I. Background

Basic rights, including freedom of speech, assembly and association, the right to receive information and to petition the government, may be contained in constitutions or in separate bills of rights with constitutional force. The language of such documents, however, should be interpreted in the light of international and national notions of their meaning, based upon international declarations, international court cases and society norms.

The state must actively defend and guarantee the free exercise of basic rights. It has become a generally accepted notion that the executive power of government is incapable alone of guaranteeing basic rights. The best institution that our current theories suggest is that of a judiciary independent of executive control. For constitutional questions, the standard institution is the constitutional court, but ordinary courts may also be capable of deciding such cases.

In the background of any meaningful participation by the public are two essential factors. The first and most important is information. Inadequate access to information is the single biggest pitfall for the public. If the information upon which participation is based is incomplete or inaccurate, not only does participation fail in the given case, but the whole mechanism of public participation is left open to attack by opponents and critics. Information, moreover, must be put to its best use. Thus, advice and assistance from scientists, lawyers and other professionals is also essential for public participation.

Needless to say, substantive public participation laws and procedures are also necessary. These must be sufficiently detailed to be uniformly applied and to be enforceable. As in the case of basic rights, higher administrative authorities and in some cases the courts must be willing and able to enforce the substantive rights contained in environmental laws and other laws pertaining to public participation. Needless to say, such administrators and judges must be competent and in some cases, courageous.

European and international norms for such substantive public participation laws and procedures are beginning to emerge, arising out of general principles set forth in international declarations (Stockholm, Helsinki, Rio), more specific provisions of international conventions (Espoo, Basel, Bonn, Ramsar), and provisions of national and international instruments (EU directives, legislation of various states). Within the region there is a general trend in the direction of such standards, with a great deal of consideration and adjustment. In addition, certain institutions of less universal scope are being tried out in the region, such as the ombudsman, and certain innovations to environmental impact assessment (EIA).

The following factors would constitute a fair comparison of countries in the region with good law and practice in the field of public participation according to European and international norms:

• Adoption of statement of basic rights
• Actual implementation of mechanisms for protection of basic rights
• A state based on separation of powers with an independent and competent judiciary
• A framework environmental law, including the principle of public participation
• An elaborated law on environmental impact assessment, with prescribed procedures for public participation
• Implementation of Environmental Impact Assessment in practice
• Enforceable procedures for access to environmental information
• Right of appeal, from administrative and judicial proceedings
• Legal avenues for challenging acts of state administrators
• Firm legal basis for establishment and operation of non-governmental organizations.

Thus, at least the following factors must be examined in assessing the level of development in public participation in the region. They are: adoption of basic rights in constitutional form; judicial guarantees of basic rights; independence of judiciary; reform of judicial system; access to information; availability of professional assistance; level of sophistication of public; substantive environmental and other public participation rights; procedural guarantees of such rights; transparency of decisionmaking; responsible administrators. Of course, not all of these factors can be examined in this report.

Legislation and practice in public participation

Without some attempt at grouping, however, the analysis and interpretation of developments in the region would be rendered meaningless by qualifications and exceptions. In spite of the difficulties, therefore, it is necessary to take the leap and group countries together in a flexible and, hopefully, unobjectionable manner. Certain groupings relevant to specific topics will emerge in the text. For purposes of a regional overview of the status of public participation laws and practice in the region in 1995, a few observations will suffice.

The "newest" countries in the region are the three Baltics - Estonia, Latvia and Lithuania. Having more recently won their independence, they have a shorter experience with basic reforms. But as newly independent constituent republics of a former federation, they share something in common with three countries from the other pole within the region - Slovenia, Croatia and FYR Macedonia. These six countries (the "successor" group) inherited highly developed communist-based systems from the predecessor federations. To varying degrees their independence represents the reemergence of strong national identities from a period of suppression. These countries share two characteristics.The first is a difficult process of "disentanglement" from the inherited system, both legal and socio-cultural. The second is a strong drive to reestablish their national identities, including by choosing a course to follow in the field of public participation. Slovakia, despite the gentleness of the Velvet Divorce, is increasingly showing signs of belonging in this group. These nations share an important psychological distinction. They, and the nations of the Baltic especially, can disavow complicity with the problems of prior regimes. This is important because it allows these countries to make a clean break with the past on an ideological level and choose freely their destinies, whether their futures will be communist or capitalist, liberal or conservative.

Another grouping can be made based upon interest-tying with Western countries and institutions. The Baltics and Poland, for example, share significant natural resources with certain Western countries (Sweden, Finland, Germany and others). The consequent direct interest in the success of environmental protection measures in these countries gives rise to a certain mirroring of contacts along governmental and nongovernmental lines. With respect to public participation, this factor is reflected in the level of sophistication of NGOs, due to their closer collaboration with well-established Western counterparts. It is also a characteristic of these countries that their proximity to Western countries results in a few high-profile environmental conflicts that bring attention to a European-style public participation process. Besides the Baltics and Poland, the Czech Republic, Slovakia, Hungary and Slovenia could be placed in this "interest-tying" group. In addition, the Baltics, and perhaps Poland, occupy a special place, as they are more influenced by Scandinavian countries, which are unparalleled in their public participation tradition. As one would expect, therefore, the Baltics are among the most active CEE countries in public participation initiatives, although such initiatives are still in the very early stages.

A small group of countries in the region is remarkable because of a relative lack of development of pluralistic societies. These countries, even though they may be experimenting with multi-party democracy, have not yet firmly developed a culture of pluralism. Bulgaria, for example, has survived two swings of the political pendulum, without coming to rest anywhere. In these countries, whether and to what extent to adopt Western political norms is still a matter of debate. Some of the conditions that would naturally give rise to the development of the civil society are not present, in part due to a heavy authoritarian tradition. It is difficult to characterize this group in any way other than in terms of "dynamism" - of institutions, of power structures, of political theories. Besides Bulgaria, this group includes Romania, Albania, and, to some extent, Slovakia. FYR Macedonia and Croatia fall into a similar category that is characterized more by preoccupation with matters relating to the Wars of Yugoslav Succession. Progress in development of public participation is proceeding by fits and starts in these two countries.

Finally, another grouping can be made along the lines of economic activity. For better or worse, a good deal of public participation experience is linked to the environmental impact assessment (EIA) process. The frequency of EIAs is necessarily linked to certain types of economic activity. Generally speaking, the more investment there is in a country's economy, the more public participation proceedings there will be, helping to develop practice, comfort and familiarity. Thus, a group similar to the "interest-tying" group can be named (the "development" group), including Slovenia, Hungary, Slovakia, Czech Republic, and Poland, with Latvia and Estonia poised to join, and Lithuania a little behind.

So where is the region and where are the various groups? Generally, with a few anomalies, basic rights exist in constitutional form. For several reasons, however, the defense of these rights is at a low level. It is possible that residents of the countries of the region enjoy relatively less interference with their exercise of basic rights than in other countries. But in countries where individuals have access to constitutional courts, there is a larger number of cases challenging interference. Constitutional courts are perceived as more reliable than the ordinary court system, which historically has been plagued with incompetence, a lack of sympathy for citizen claims, and a sometimes flagrant failure to follow the law. No new institution has solidly emerged as the defender of basic rights. The constitutional courts of a few countries are comparatively active in this field, and experiments with the office of ombudsman are only beginning. Basic rights are less defended in the "dynamic" countries.

With respect to environmental legislation, the momentum behind law drafting has begun to pick up again. An initial burst of legislative activity faded after 1992, but in the last year or so environmental drafts have been picked up off the shelves and dusted off. Only two countries in the region do not now have modern framework environmental laws.

The major focus of environmental law drafting to implement the principle of public participation has been EIA. All countries in the region, even those without modern framework laws, have adopted EIA legislation or decrees. Whereas the EIA process is the primary avenue for public participation concerning specific projects, land use planning offers a long-established, though less developed, set of procedures for local and regional planning. At least one country has recognized the link between these two kinds of laws. With few exceptions, media-specific and permitting laws do not include public participation provisions. Consequently, countries without many investment projects have fewer opportunities for public participation. Some countries have adopted interesting and innovative provisions creating more chance for EIAs. On the other hand, the government of one country has amended EIA provisions to cut short EIA proceedings in virtually any case where the administration desires it.

Although framework law-drafting is nearing completion, a great many media-specific and activity-specific laws remain in force from the last generation. They are often consistent with the old system, but inconsistent with the new constitution and legal order. Revising these laws is a huge task. In Hungary, for example, eighteen pieces of new or revised legislation are mandated under the new framework law. Besides environmental laws, other laws with a more general influence on rights and procedures are also in the process of revision. Perhaps the largest and most specialized task in this regard is the revision of the administrative law. Here, we can distinguish among countries - the former Yugoslav republics had a highly elaborated legal system, which remains in effect except those provisions that are inconsistent with the new constitutions and legal order. These countries to varying degrees have a sense of ownership over the old system, and are slower to reform. For example, in FYR Macedonia an old law on local self-government remains in force to fill a void, even though it is inconsistent with the new legal order, while the new law is being elaborated. The process of replacement is less gradual where the split with the past is more acute, as in the Baltics.

Although it is beyond the scope of this report, public participation through international law bears brief mention. In a poll conducted in Poland, a large number of citizens responding to a question concerning where to go in cases when basic rights are infringed cited the European Court of Human Rights in Strasbourg. Where national institutions are unresponsive to the needs of the population, it is reasonable to look outside the borders. In nearly every country in the region, international agreements, laws and norms have a superior force over national legislation. As transboundary impacts are common in the region, international considerations will continue to grow. Although cases of appeal to international organs is so far rare, the Polish poll shows that there is potential for their use.

Public participation in decisionmaking