All countries of the region have adopted statements of basic rights. In most cases, these statements comprise an integral part of the constitution. In some cases, basic rights are covered in a separate document "of constitutional force." In general, basic rights provisions comply with international and European norms. The basic rights which are directly relevant to public participation include the rights of expression, association, and assembly, and the rights to receive information and to petition the government.
The right to a healthy environment, obviously of great importance to environmentalists, is a right of a different category from other basic rights. It is a "social" right, like the right to work, right to raise a family, right to education and right to health. Instead of establishing a sphere of freedom for the individual, such rights impose duties upon the state to maintain a particular kind of social order. These rights are just as "real" as the fundamental rights of individuals, as shown by a decision of the Hungarian Constitutional Court which stated that the environmental and health-based rights found in the Hungarian Constitution require the state to guarantee a high objective standard of environmental protection.
Examples of the absolute nature of individual rights being tempered by a statement of potential overriding interests of the state can be found in statements of basic rights in the region. In some cases such qualifications of rights do not diverge from European norms, which are somewhat less individual rights-oriented than American and other Anglo-based norms. But there are cases where the language of delimitation of state interference with the exercise of individual rights is less precise and restrictive than that which is customary in Europe. That is, the occasions where state interests might justify restrictions on the exercise of basic rights are defined in more general terms, potentially resulting in excessive restrictions in individual cases. Such overbroad language occurs especially in the "dynamic" group of countries. Specific examples can be found in the areas of freedom of the press and freedom of association. Freedom of association has proved to be an especially sensitive issue because of efforts from to restrict the formation of various extremist groups.
Once basic rights are accepted, there must still be a mechanism for guaranteeing the protection of such rights. One well-established mechanism is the constitutional court. But the constitutions of some countries of the region do not grant court standing to individuals complaining of interference with their constitutional rights. In some cases such standing is made unnecessary by granting to ordinary courts the power to decide such cases. Hungary, meanwhile, has perhaps the most liberal standing rules for challenging legislation before the constitutional court in the region. Anyone may challenge the constitutionality of a law before the Constitutional Court, without case or controversy requirements. This has already led (in 1994) to a case interpreting the right to a healthy environment as requiring the government to offer a high level of protection to the citizens. In some countries constitutionally based claims may be brought before ordinary courts in addition to the constitutional court. This is especially important in countries where access to the constitutional court by individual claimants is limited.
There are reportedly few cases in the region upholding basic rights. Those few usually concern access to information and freedom of the press. Journalists are often involved. In Hungary, claimants have succeeded in gaining access to environmental information by appealing to courts. Other cases have been reported in the Czech Republic and Bulgaria. On the other hand, in a widely criticized opinion, the Constitutional Court of Bulgaria upheld legislation that could potentially cut off public involvement in EIA of the most important projects in Bulgaria.
In spite of the general acceptance of basic rights norms throughout the region, a handful of countries are still in need of a permanent constitution to replace interim temporary constitutional laws. Another significant need in a handful of countries is for access to constitutional courts to be extended to individuals whose claims are based upon fundamental rights. Mechanisms for the defense of rights need to be strengthened throughout the region, so that the public will begin to trust in their reality.
As environmental protection is a field where access to information is sine qua non, provisions and practice have begun to be developed. Most provisions guaranteeing constitutional and statutory rights of access to information are contained in environmental laws, usually in general framework provisions or those pertaining to EIA. The tendency in the region is to develop EIA guidelines with specific procedures. In a few cases the laws themselves contain provisions of comparable specificity. These access to information provisions generally are among the most specific such provisions contained in any law or regulation in the subject countries.
On the one hand, vague language restricting the right of access to information in cases of state secrets has been used at times to deny access in an Orwellian manner. On the other hand, the unspecified nature of the right to information can sometimes be used to an advantage, because sympathetic authorities can interpret the right as being virtually unrestricted. In any case, the lack of laws presently guaranteeing access to information remains one of the puzzles of the transitions to "open" societies.
Even where language is more specific, gaining access to information can be difficult. For the most part state administrators take a passive approach to their duties. When called upon to act they will, but they do not actively solicit requests for them to act. In a few countries environmental protection authorities are refreshingly active and responsible. In Estonia, ministry officials are implementing programs to encourage the public to take part in decisionmaking, and to train local authorities to distribute information and work cooperatively with the public. But this is the exception rather than the rule. In some countries citizens have had to go to court to force authorities to carry out their duty to provide information. As these cases are publicized, authorities become more active and responsive. Fully elaborated information laws remain a need throughout the region. At a minimum, access to information provisions in the environmental protection laws need to be strengthened.
In recent years, EIA law drafting has received perhaps the greatest proportion of attention of any environmental law subject matter. It has also been the repository of most hopes and efforts in the field of public participation. Public participation norms are relatively well-developed with respect to EIA, and law drafting in the region has not departed from this. Nearly all countries in the region have adopted specific EIA provisions (either contained in framework laws or adopted separately) and most have initiated specific guidelines. Even countries such as Romania, which have not elaborated EIA guidelines, are conducting them in practice according to something resembling international standards. Of course, many times the legal requirements are ignored. In some countries, there is a great discrepancy among projects as to the extent to which EIA is implemented. Factors such as international involvement, public versus private interests, and the size and national significance of the project influence whether the letter of the law is followed in a given case. In a few countries only, EIA requirements are rigidly and substantially put into practice. Poland, the Czech Republic and Slovakia especially have developed screening procedures for identifying all projects where EIAs are required.
EIA procedures tend to be highly developed in comparison to other environmental law or public participation procedures. The tendency in the region is to develop EIA guidelines with specific procedures. In a few cases the laws themselves contain provisions of comparable specificity. In general, only the well-established land use planning procedures are set forth with comparable specificity.
EIA depends upon a triggering event, and so placing the state's public participation responsibility solely in the EIA process has been criticized. Some countries in the region - most notably Slovenia and now Hungary - are experimenting with flexible triggering mechanisms so that many heavily polluting activities will not escape assessment. In Slovenia, for example, EIAs must be conducted periodically, whether or not new activities are proposed. Slovenia also requires EIA whenever ownership of a facility changes. Bulgaria, an innovator in the past, has recently taken a more conservative approach; by amending the Environmental Protection Act, parliament weakened EIA provisions. Nonetheless, the Bulgarian EIA law is still one of the models of the region and includes innovative provisions, including a time limitation on validity of EIA findings. Physical or legal entities with an interest also have a right to propose to the authorities that an EIA be ordered.
Critics point out that public involvement in EIA comes too late in the process. No country (the new Hungarian law is somewhat better on this) provides for public involvement in the scoping phase of projects. Moreover, there is no EIA (or analogous procedure) for policymaking. Therefore, environmentally disastrous policies can be in place which dictate a decision against environmental interests, even in the face of active and convincing public participation.
The tendency in the region since the transition period has been for public participation provisions to be concentrated in EIA laws, and generally left out of permit laws. There are some exceptions, especially in Estonia, and in some draft laws still under consideration, such as the draft Romanian water law. But in general, the position of environmental authorities is that the proper place for involvement of the public is in the initial planning stages and, assuming a particular facility passes muster, the authorities alone are able to control how the facility operates within legal requirements. This view has been criticized on at least two grounds. First, that many existing facilities will escape public oversight in the EIA process entirely because no new construction or other triggering activity will take place. This is especially true of industrial "dinosaurs" that are unattractive for investment yet cannot be completely closed because whole communities are economically dependent on their continued existence. The second ground for criticism is that the current permit system will perpetuate the inflexibility of the prior system whereby changing circumstances cannot be adequately taken into account from the point of view of the public. That is, once the public has participated in an initial EIA, future developments in state-of-the-art technology, the extent of local development, scientific knowledge, even the compliance record of the company, will only be addressed by permitting authorities, with no public involvement. These criticisms have been at least partially addressed in some countries, as discussed above.
The administrative law of some countries provides for the possibility of public involvement in permitting and other related proceedings. In Poland, the Czech Republic and Slovakia, citizens have the right to form Civic Associations for the purpose of taking part in a given administrative proceeding. The Civic Association has the rights of a party in the proceeding. This mechanism potentially can be used in a wide variety of situations, including the permitting procedure, but there must be an existing administrative proceeding in which to take part. Where permits are issued for the life of the facility and enforcement is a ministerial matter without need for an administrative proceeding, public involvement remains impossible.
The system of permits is gradually being changed to more fully take environmental considerations into account. This process is slower in countries where privatization has proceeded more slowly, as the incentive for government to self-regulate is small. Permits are being limited in time, and renewal procedures are more rule-based. In general, however, there is a need for more opportunities for the public to participate in permitting and permit renewal proceedings. A full overhaul of the permitting system is needed in some countries.
Even where privatization and competition should have eliminated this concern, no country in the region has adopted the wide range of citizen enforcement mechanisms prevalent in some Western countries, in spite of the recognition that they are economical and efficient. One theoretical objection to such mechanisms is contained in the legality principle, which obligates the state to take action if illegalities are brought to its attention. Thus, the situation where a citizen can step into the shoes of the prosecutor when that person exercises his discretion not to prosecute a given case theoretically cannot arise in civil law countries. It is thus inappropriate for the moment to try to apply non-continental models to the region. Latvia, however, is one country in the region that is in the initial stages of looking at the possibility of introducing citizen enforcement provisions.
The legal systems in the region maintain the view that appropriate organs of state administration are the proper actors in the field of enforcement. Citizens are welcomed to bring violations of laws to the attention of the authorities, but no specific enforcement rights are granted to citizens, nor are incentives to assist enforcement, such as recovery of costs or multiplied damages, available.
The lack of incentive for citizens to assist in enforcement is even more pervasive, however. In the first place, the potential penalties for violations of environmental laws are rather small. Second, in situations where enforcement officials may be paid off either directly or indirectly, citizen interference is not well received. Moreover, if state administrators do not act, there is little chance of forcing them to do so through appeal. Finally, enforcement officials will not act against state enterprises except in the most extreme circumstances.
In general it is critical for penalties for environmental violations to be severe enough as to actually modify behavior. But even these penalties will not be applied according to the present system. Therefore it is equally important that the environmental authorities be truly independent from those they are regulating. With the removal of these obstacles, citizen involvement in enforcement is more likely to be welcomed and encouraged.
Following large-scale privatization of lands, local planning has taken on an added significance, since the extent to which the uses of private property can be limited by the state must now be taken into account. Although land use planning laws have been amended or newly adopted to reflect basic economic transformations, public participation provisions have generally not been affected by these changes. Thus, it is still the norm for officials to publish annual plans and for public hearings to be held to consider such plans.
Land use planning generally takes place at regional and local level. It is typical for regional planning to be conducted for a longer term - five to 15 years is not unusual. Greater flexibility is allowed on the local or municipal level; the tendency is for planning to be conducted on a shorter time frame - usually annually, but in some cases every five years. Where planning procedures take place less frequently there is a tendency for more drift to occur as circumstances change and proponents of activities use administrative mechanisms for variances. Thus, to ensure greater public participation, land use planning should take place rather frequently.
Although the synergies between EIA and land use planning should be apparent, their independent evolution has resulted in a lack of consistency between the two forms. Slovenia is the first country in the region to fully acknowledge the link between land use planning and EIA by adopting amendments to the land use planning law that harmonize both procedures.
Although basic rights are generally guaranteed, the environmental, land use and other related laws often do not provide procedural rights that would allow citizens to exercise their basic rights. Law reform to provide basic procedural rights is critically needed. A possible vehicle for such reform would be the reform of administrative codes. An alternative (though more problematic) course would be for the governments to adopt in a piecemeal fashion procedures for each substantive law to implement citizens' rights.
During the previous era, when the interests of society were resolved on a more political level, there was no practical need to restrict participatory access to particular administrative proceedings. This was true, even though administrative laws contained language restricting participation to those showing a "legal interest" in the proceedings. In theory all proceedings involved public, not private, interests, and any member of society could participate in the process. The ultimate decisionmaker, however, was not obliged to respond to most of these so-called "parties" in the proceeding, however, as their statements were considered to be advisory. Only where additional proceedings, such as appeals, were sought, did the question of legal interest bear serious examination.
As administrative proceedings have increasingly involved private actors seeking administrative solutions to private problems, the desire to exclude unnecessary or superfluous parties from participating in proceedings has grown. Thus, the notion of standing - and, in particular, in what constitutes a "legal interest" - is developing along lines similar to those found in the West, in order to facilitate the resolution of disputes and other issues of state administration. The term "legal interest," although not well defined, is often connected with the notion of "affected parties." As more issues are entering the arena of organized public discussion, the question of standing for nationals of neighboring countries who may be potentially affected will more frequently arise.
Needless to say, the concept of standing is developing at very different rates in the countries of the region, depending on the level of development of privatization, and the degree of sophistication of the legal tradition. In countries with a strong tradition of central power, dating from even before the communist era, the concept of judicial appeal from administrative decisions is still somewhat innovative. Bulgaria is a country where the constitutional provision guaranteeing rights of access to judicial appeal is still contemplated with a sense of awe and relief. People are almost afraid to touch it for fear that it will turn to dust before their eyes. In the western tier of countries, including Hungary, Czech Republic, Slovakia, and Poland, resort to the courts is a normal step in dispute resolution.
A recent administrative court case in the Czech Republic limited standing in land use and construction cases to immediate neighbors. Ironically, the same kind of decision made in 1975 in Poland resulted in a firm response with progressive legislation expanding the standing right. Although standing in administrative proceedings is reportedly granted generously in Poland, there too the question of legal interest may be a barrier to appeals.
Under the laws of a number of countries in the region, automatic standing in administrative proceedings is granted to registered public organizations or "civic associations." Official registration, therefore, can be a barrier to automatic participation by some environmental groups, as occurred in a case in Poland where an environmental group was denied standing in a recent case appealing the decision of an administrative body because it was not registered and therefore did not enjoy the rights of a party.
Poland, the Czech Republic and Slovakia also grant standing in EIA proceedings to a "public initiative," which can be formed by 500 or more people for the sole purpose of participation in the EIA process, and can consequently have the status of a party to the permitting proceeding following the EIA process. This standing is not granted under the general administrative law, and therefore applies only to EIA.
With few exceptions, countries in the region need to establish, by legislation or rule (probably the latter, as it is an evolving normative issue and rulemaking offers greater flexibility), standards for determining who is an "interested" or "affected" party with the right to participate in administrative hearings.
The term "institutions" is used here loosely. Besides particular offices and governmental and non-governmental bodies, we are referring also to certain legal structures and procedures to which the public may resort, such as the power of popular legislative initiative. The office of Ombudsman and the initiative power have been mentioned already. Other institutions that may help to support public participation are the constitutional court, an independent and active judiciary, lawmaking procedures, the power of referendum, accessibility and accountability in state administration, a developed NGO sector, and readily available legal and other professional services.
Some countries (including FYR Macedonia, Hungary) report a very active Constitutional Court in the field of basic rights. The activist Hungarian court can be counted among the success stories in the region in helping to promote the rule of law and consequently a sound basis for public participation. The level of a court's activity appears to be directly related to the lack of a threshold requirement for individuals to bring constitutional claims. Therefore, it can be concluded that in countries where individuals cannot bring constitutional claims before the court, such cases nevertheless exist, and are not adequately remedied.
The Ombudsman, an officer of parliament with the power of oversight over organs of state administration, is established under the constitutions of nine countries in the region. And yet, this institution has not been implemented to the same degree as the constitutional courts. Ombudsmen have only taken office in five countries so far, three of these within the last year. Only in Poland is there substantial experience with an Ombudsman in place. Nonetheless, the recent appointments indicate the momentum for ombudsmen is building and the next few years will be critical ones in determining the long-term viability of such an institution in the region. Lithuania bears special mention as a country that has adopted an impressively detailed law on the Ombudsman that defines misfeasance and malfeasance in office and specifies the Ombudsman's powers to a high degree. This law is too recent to be evaluated from the standpoint of practice.
Although constitutional courts have been established in all countries in the region, countries should extend access to constitutional courts to individuals whose claims are based upon fundamental rights. Moreover, governments should refrain from interfering with the courts though meddling in financial and other fundamental ways. In several countries, ombudsmen, though established under the constitution, are yet to be named. Countries which have not done so should consider creating the Office of Ombudsman.
But even in these countries, public participation in the drafting of a particular law is ad hoc. Slovakia may be the only country in Central and Eastern Europe to legislatively mandate public consultation in the parliamentary legislative process. The Law on Negotiation Order of the Slovak National Council requires Members of Parliament to consult their constituencies on all laws or proposals that will be discussed. Elsewhere, public consultations in law-drafting are not mandatory, although once they are initiated, specified procedures may apply.
The situation with governmental regulation by decree is slightly better. Three countries in the region require the government to respond to comments in the process of rulemaking. Poland's law governing the process of public consultations with government organs (the Consultations and Referendum Act of 1987) is perhaps the most detailed in the region. Although the government can accept or decline requests for consultation, once public consultation is initiated, either upon request or sua sponte, definite procedures are prescribed, which convey specific rights to participating organizations.
The countries of the region must look outside Europe to North America for fully developed models for public involvement in rulemaking. And it might perhaps be appropriate for them to do so, given the lessons learned from the recent authoritarian past. The countries of Central and Eastern Europe should enact laws governing the process of governmental rulemaking which include definite public participation procedures and which require the government to consider and respond to public comments. Moreover, a parliamentary practice of public involvement through hearings and written comments should be adopted and elaborated in the form of procedural rules.
In FYR Macedonia, two NGOs have banded together to draft and submit a law banning smoking in public places, exercising their power of legislative initiative under the Constitution. The draft law was submitted to the Parliamentary Commission as well as to the Ministry of Urbanistics, Construction and Ecology for comment, and was passed to the floor of parliament with few changes.
Attempts have been made at organizing referenda at both national and local level in several countries. In most cases these attempts have been frustrated by technical and procedural challenges. Attempts at referenda are more numerous at the local level, and some referenda have been conducted, but their results are less persuasive. In some cases, environmentalists have refrained from pursuing referenda for fear of losing, as it is thought that voters would show loyalty to a local employer even in the face of heavy pollution.
The powers of popular initiative and referendum are naturally limited by procedural hurdles and the possible resolution of underlying issues through other, less radical measures. The fear that such powers would unjustifiably interfere with state administration is thus unfounded. On the contrary, initiative and referendum may provide necessary mechanisms for responding to extreme government action or to spur the government to action in cases of great importance to the public. In several countries in the region, therefore, constitutions should be amended to provide for greater possibilities for public participation in the setting of national and environmental policy through the powers of initiative and referendum.
A prerequisite for the development of proper respect for the judiciary is first and foremost a proper respect for law. That can only be achieved where the laws themselves are perceived to be fair. Law reform in all fields has proceeded rapidly in the last few years and anecdotal evidence suggests that the majority of the public perceives improvements in overall fairness of legislation.
Fair and equal application and enforcement of the law by the judiciary is also required in order for the public to rely upon it for resolution of disputes, and there is little evidence, anecdotal or otherwise, to indicate that the public's perception of the judiciary as in league with the government has changed. A distinction may be made here between the constitutional courts, which are usually more obviously independent, and the lower courts.
Notwithstanding the public perception, that will surely be slow to change, many countries in the region have reorganized their lower court systems. The major focus of such changes has been to ensure the independence of the judiciary from undue influence from other branches of government. Full independence has been elusive, however, as it is still a European norm for the judiciary to be at least partially under the control of the executive branch, through, at a minimum, the power of appointment and removal, and the control of resources available to carry out the judiciary's tasks. In some countries in the region the role of the courts has been the subject of much debate. Bulgaria, for example, has been the setting of harsh power struggles among parliament, the executive and the constitutional court in which the government has not been above using control over buildings and budgets as weapons. In countries where the former communists have returned to power, the tendency has been to maintain central control over the judiciary. In other countries, the judiciary has generally achieved greater status and power. In Slovenia, for example, judges have been given life tenure, freeing them from dependency on the executive branch for their livelihood.
Although basic rights are generally guaranteed, and have a chance of vindication through the constitutional court or the ombudsman, it is often more difficult to enforce rights contained in substantive laws. Environmental, land use and other related laws often do not provide specific procedural rights that would support the substantive rights found therein. Where statutes are silent on procedural rights, judges are reluctant to invent them. Law reform to provide basic procedural rights is critically needed. A possible vehicle for such reform would be the reform of administrative codes. An alternative (though more problematic) course would be for countries to adopt in a piecemeal fashion procedures for each substantive law to implement citizens' rights.
In most countries the demand for legal assistance outstrips the supply, as shown by surveys of environmentalists and specialists in the region which often cite the lack of availability of legal assistance as one of the major stumbling blocks to active public participation. Legal assistance is needed, not only for bringing forward cases before administrative or judicial bodies, but also for advising the public on how to maximize the effectiveness of their participation, and even in how to avoid disputes down the line.
The tendency in new laws has been to facilitate ease of organization, while maintaining official contacts with newly formed NGOs. Authorities have come to realize that formation of interest groups is virtually uncontrollable, and such groups, therefore, need to be encouraged to come forward for official recognition. Such recognition can also assist NGOs to fully and adequately represent the interests of their members, as NGOs increasingly become instruments for the exercise of collective rights.
NGOs need to operate professionally, which includes understanding their tax and other social obligations. In some countries certain categories of NGOs are exempt from some taxes and charges. But to take advantage of this they must be prepared for a possible audit. Penalties for failure to comply with financial requirements can be quite severe. In at least one country in the region an environmental NGO was heavily fined for nonpayment of taxes.
In the "interest-tying" group of countries, NGOs have the benefit of strong international cooperation. International involvement in such cases as Temelin, Mohovce and Nagymaros/Gabcikovo are examples where regional NGOs have learned legal and non-formal tactics from Western counterparts. Consequently, NGOs in these countries have developed rapidly in terms of sophistication and professionalism. Needless to say, some NGOs purposefully resist such developments, preferring to maintain their roots.
Although NGO law drafting has gained pace, many NGOs in the countries of the region are still operating under outdated laws that need to be overhauled. Moreover, in a few countries, law drafting efforts are lagging, and in some countries there appears to be no intention of removing procedural obstacles to formation and participation. The old tendency of limiting public participation to established social organs persists to some extent today. The nature protection law of the Czech Republic, for example, includes public participation provisions that specifically apply to environmental organizations created for specific nature protection purposes. Presumably individuals with similar goals do not have standing under these provisions. In general, however, where individuals have recognizable legal interests, they enjoy the same status in administrative proceedings as public organizations.