Citizens as individuals or as a group of citizens have the right of expression, the right to information, the right of free assembly, the right of association and the right to petition.
The right to a healthy environment is not explicitly provided by the Constitution. However, the general obligation of the state to protect and ensure the health of the citizens is stated in Art.33. Also, it is a fundamental obligation of the state, according to the Constitution, to act in the case of environmental rehabilitation and protection. The right to a healthy environment will be guaranteed by the upcoming new environmental law.
The Constitution also guarantees the right of the public to gain access to information in the public interest and states that this right cannot be restricted. It also obliges public authorities to provide correct information related to public affairs, according to their competence (Art.31). According to these provisions, there is a general right to information, including environmental information, though this right is not specified in the above-mentioned article.
The term "public interest" which is used by law-makers is very general in scope. It should therefore cover all the fields of social life, including environmental protection which is - pre-eminently - an issue of public interest. The guarantee to provide information is relevant, provided this kind of information has a bearing on personal interests. These legal provisions, however, do not contain either specific items on the right to access to environmental information nor specifics about information providing.
The general right of petition is stipulated by the Constitution, but petitions can be drawn up only in the name of the applicants, both those addressed by physical persons and legal persons. In practice this means that, for example, NGOs can draw up petitions only in the name of their members, which limits the capacity for public support. The public authorities are bound to answer to petitions within terms and under conditions as established by law (Art.47:4) within a period of 30 days, as a rule. Ordinary citizens do not have the right to petition the Constitutional Court.
In Romania, it is not a tradition to base legal actions directly on the Constitution. However, at this stage of development, when the legal framework for public participation is far from being developed, often this is the only basis of reference to validate some basic participation rights (for example, access to information). However, citizens and NGOs often indirectly base their actions and activities on what are seen as basic individual rights, such as the right to free association and peaceful assembly, the right to information, freedom of expression and speech and the right of petition.
The public has the right to propose amendments to the Constitution by initiative. Such motions require the petition of at least 500,000 citizens with the right to vote, subject to geographical distribution requirements. The right of initiative to propose legislation is also guaranteed; a minimum of 250,000 citizens with the right to vote is needed to take this initiative. The petitioners must come from at least one quarter of the nation's counties, with at least 10,000 petitions from each of them.
The right for national level referendum is provided by the Constitution in Art.90. The President of Romania may make a motion for a public referendum on a given act after consultation with parliament. There is no provision by which citizens acting on their own can require a referendum. The law which will regulate the organization and holding of a referendum has not been drafted.
At a local level, the law on Local Public Administration No.69/1991 includes provisions allowing the mayor to submit matters to the public for consultation and approval. This can be used for public participation. Matters should be initiated by the public according to the provisions stipulated in the City Council (local council) Statutes. Every local council adopts its own statute which includes the rules regarding meetings, duties and obligations of the councillors and the different committees (including the environmental committees, etc.). Thus, citizens may work together with the mayor to increase their influence over local environmental matters. The statutes can include provisions regarding the referenda on a local level. These statutes are very different from one town to another - e.g. in Tirgu Mures, just 8 percent of the citizens are required for a referendum.
The public and NGOs have only limited possibilities to make a direct impact on the decisionmaking process of parliament and at central government level. There are no imperative public participation provisions/procedures in the Statutes of the Parliamentary Chambers, or in the law-making process. No laws or rules governing the process of law-making at either parliamentary or government level contain public participation provisions, nor do they require that the public be notified of proposed laws.
The only possibility environmental NGOs have to make an impact on the legislative process is to draft laws, approach Members of Parliament (MPs) concerned about the environment and ask them to put these drafts on the Parliamentary table. Although parliament is not legally required to make public the draft laws, or to take into consideration citizens' comments, there have been cases when a law was adopted after consultations/meetings with citizens - e.g. Law 83/94 relating to the Danube Delta Biosphere. Parliament usually makes drafts available to the press and sometimes these are published in summary form.
The vast majority of legislative drafting and policy making is undertaken by the government. Though the Constitution, as mentioned above, declares generally that social organizations should be consulted in the government's activities, no other laws or rules require the government to take into account or respond to public comments and, in most of the cases, the opinion of the public is not included in the legislative process. Social organizations are not consulted generally. However, the general environmental strategy was presented to the NGO community by the Ministry of Waters, Forests and Environmental Protection for comment. The comments (suggestions) are under preparation.
At local level, citizens and NGOs have more chance to raise their voices in order to solve environmental issues. Generally, it has been noticed that local counselors are more open. Art.73:1 of the Constitution provides that a minimum of 250,000 citizens with the right to vote have the power to propose legislation, subject to geographical distribution requirements. The petitioners must come from at least one quarter of Romania's counties, with at least 10,000 petitioners from each such county. The city/county council meetings are open to the public, but the public has no right to comment during the meeting. The agenda of the meetings is made available to the public two or three days before the meeting and the public can comment and submit proposals which are registered at the Secretariat.
There is a Constitutional Court according to Title V of the Constitution which decides upon the constitutionality of laws. Several branches of the governmental power or members of the parliament can challenge, at the Constitutional Court, the constitutionality of the provisions of an already adopted law. Ordinary citizens do not have standing to bring actions challenging the constitutionality of laws directly to the Constitutional Court.
In case of ordinary lawsuits at normal civil or penal courts, the plaintive may ask for unconstitutionality exception if he/she considers that some provision of the law, which has been applied in the case, is not constitutional. In this case, the normal court has to suspend the procedure, until the exception is judged by the Constitutional Court. There have been no cases reported on environmental issues so far.
There is also no practice in Court regarding environmental cases.
Lawsuits brought before the court are, with few exceptions, liable to payment. Judicial fees vary according to the nature of the lawsuit and the value of damages required, in which case, fees can be considerably high. The court has to have an active role in calculating the cases. Claims could be made, not only for money, but for many other types of action, including forcing a governmental agency to fulfill its legal obligation. Anonymous complaints are not taken into consideration by the courts. Closed proceedings are compulsory in very few criminal cases. In civil law, as a rule, the procedure is opened for public.
An association can only act if it is registered at the special registry of legal persons at the Departmental (county) Court, then it is considered legally constituted. This law is quite outdated and needs to be amended because it is an obstacle for public participation. Dating back to 1924, (Law No.21/1924), the law contains provisions regarding formal procedure to establish an association, which court is competent, how many persons are legally required to constitute an association, requirements for the content of the statute of the association, permits from different ministries (according to the main aims and activities of the association) and judicial fees. The procedure to establish an association is complicated, needs the assistance of a lawyer and takes quite a long time - i.e. two or three months. The jurisprudence is not consistent and very often the entities who are entitled to give permits make the process more difficult.
The general rules of delictual liability (Civil Code) could be applied to circumstances where individuals are injured by the acts of others, including acts of environmental pollution. NGOs cannot stand in Court. It is expected that the new framework law will include provisions on environmental liability and the position of environmental NGOs as a plaintive in lawsuits related to general environmental causes. The main obstacle in the way of public participation is the absence of procedure.
There is no efficient mechanism established to provide reports and receive information for public access. Public authorities are required to provide information, but do not have specific instructions related to their duty - i.e. what information, to whom, and how they have to disseminate. Obviously there is information considered an exception: for instance, information concerning the national security of the state, but even the regime of these exceptions is not clarified. There are no specific requirements for industry related to self-monitoring and reporting environmental data, information, and public access. Seclusion and bureaucratic secrecy still prevail.
To a certain extent, the problems of environmental information call for the analysis of other laws and regulations. Thus, according to Law No.69/91 related to local public administration, local councils have an obligation to act in cases of environmental rehabilitation and protection, with a view to increase the quality of life (Art.21:m). Likewise, according to Decision No.103/1992, local councils are entitled (among other prerogatives) to organize local committees for ecology, as well as for environmental protection and control. Though this is not stated explicitly, these environmental protection committees may be qualified to provide specific information on matters of environment, based on the general right guaranteed by the Constitution.
Land use is regulated to some extent within Law No.l8/l99l in order to protect the land and soil against polluters/pollutants. The procedure is complicated, requiring plans and approval. The documentation related to what constitutes common interest does not include public participation provisions.
Building and Construction Law includes territorial planning provisions. The law requires plans to be made available to the public. Building construction requires the approval of the Environmental Agency.
According to Regulation No.243/95, the statute and functions of the National Committee Protecting the Ozone Layer include some provisions for disseminating information and educating citizens and Art.5:1 stipulates that the Committee will initiate programs to disseminate information and educate the public. Art.5:2 obliges the Committee to cooperate with the authorities and professional, environmental NGOs to implement their aims, and the Secretariat of the Committee to collect and disseminate all information for submission in an annual report. The committee head office are located at the Ministry of Waters, Forests and Environmental Protection. There are no public representatives or NGOs on the Committee.
There is a government regulation relating to the measurement of emissions and nuclear emissions, but there are no provisions for public participation within it.
A major development would be the adaptation of the new Environmental Framework Law which is in the process of being adopted by parliament. However, there are only a few articles under discussion. The new environmental law will cover many loopholes in the existing environmental legal framework. It will include, in detail, the procedure for permits and EIA. These provisions will include clear public participation provisions, according to which the procedure for authorization (permits) needs to be made public, as does the EIA procedure. The entire report, as well as the final decision, should be made public and open for comment. The comments and conclusions of public hearings should be recorded. It is the task of the environmental agencies to inform the public and initiate public participation in the form of public hearings on specific matters (urban development, etc.). The Central Environmental Authority should be responsible for creating the framework for access to information and participation in the environmental decisionmaking process (policies, rules, permits and planning) for other branches of public authority, NGOs and the public. There are also provisions regarding reporting requirements. Funding problems are covered by the draft law; however these articles are still under discussion. The future Environmental Fund will cover financing training, educational programs, etc.
NGOs will have standing in Court and will have the right to sue in environmental matters without having to prove interest (Art.90). This provision is positive, but not complete, since questions related to damages, judicial fees (or, if indeed, there will be any judicial fees) have yet to be answered. Subsequent laws and regulations are expected to be adopted on behalf of the new environmental law.
The major problem is that the laws adopted before 1989 do not include provisions for public participation and, even if they did, they cannot be enforced. The adoption of new laws takes a long time; during the last five years, not a single law has been passed, although there are several laws at the draft stage waiting for adoption. A series of regulations concerning the environment have been adopted, but the new environmental protection law and other subsequent laws regulating the main areas of environmental protection should be salutary, in order to create an efficient legal framework.
A clear, well-determined environmental policy is needed, even if the recently adopted Government Decisions and Ordinances, both at central and local level, show a more positive tendency. These regulations provide for different areas, such as the prevention of waste pollution caused by industry, environmental protection, water and fishing rights. One of the most important laws adopted in 1994 relates to legal standards of public health and hygiene and these, to some extent, fill loopholes in the legal framework by stipulating imperative obligations for industry, authorities, citizens and companies. These are essentially positive, although they do not include specific public participation provisions, with the exception of the regulation concerning the constitution and functions of the National Committee Protecting the Ozone layer (see above).
The Romanian parliament also ratified some important international treaties, such as Law No.58/1994 (Rio Convention on biological diversity) and Law No.24/1995 regarding UN Frame-Convention on Climate Changes (Rio 1992).
The adoption of the new environmental framework law will include, in a very detailed way, the procedure for permits and EIA. Comments and conclusions of public hearings should be recorded and it is the task of the environmental agencies to inform the public and initiate participation activities for the public, such as hearings on specific matters (urban development, etc.). The central environmental authority will be responsible for creating the framework for access to information and participation in the environmental decisionmaking process (policies, rules, permits and planning) for other branches of the public authorities, NGOs and the public. There are also provisions regarding reporting requirements.
Funding problems are also covered by the draft law; however these articles are still under discussion. The future Environmental Fund would financially cover training, educational programs and might be used for supporting capacity building for public participation as well.
There are few legal instruments that the public or NGOs can use for public participation and the shortage of information provided by the government (central or local ) before decisions are taken is another reason the public cannot participate efficiently. The economy is developing very quickly and many officials think that the decisionmaking process may slow down if they have to wait for comments. Due to the lack of the information and proper detailed provisions for public participation, however, a brief conclusion can be made by NGOs and the public: That what is not prohibited is allowed. Therefore, even if there are no specific public participation procedures in parliamentary and governmental practice, the public/NGOs can "push" their opinions and present their alternatives using something other than legal tools and methods. These participatory avenues are not forbidden and only depend on the power of the NGOs/the public. NGOs and the public very rarely use legal instruments, especially the courts, although a lack of information makes it difficult to appreciate how many environmental court cases there have been in the past years in Romania. Only one such case was reported recently - i.e. in Zlatna, Alba County where citizens sued, albeit unsuccessfully, SC Apellum SA for pollution.
The public is generally concerned about environmental problems but, for the ordinary citizen, public participation as a process is something new and misunderstood, due to the lack of participatory traditions; citizen participation in individual forms is rather rare and the emphasis is usually on groups.
Although there are many NGOs in Romania, their structure is not very developed, few of them have built up professional expert base and most operate regionally or locally. There is only one large NGO which has built up a national network, which means many groups concentrate on local problems. Many NGOs work as volunteers and are involved in environmental work on a part-time basis, but although some have started to work on a permanent basis and receive funds regularly, NGO groups lack staff prepared to devote all of their attention to projects.
Generally, most of the groups prefer to work on their own, although cooperation between NGOs has reached the level of national networking and annual meetings have been organized; mainly concentrating on experience exchanges, training and comments related to legislation. The relationship between the government and citizens/NGOs is rather weak since the Constitution has no institutional mechanisms of access to governmental officials at central level; cooperation between NGO experts and central level authorities tends to be on an ad hoc, personal basis. When NGO experts are invited to discussions or meetings, this is mostly due to their special expertise rather than as representatives of the public. At a local level, the relationship between NGOs/the public and authorities may be better than with the central authorities since elected officials (local counselors) can be contacted and motivated more easily.
Parliamentary Committee sessions are not open to the public, although experts may be invited to contribute to discussions. Parliament is not legally required to publicize draft laws, or to take into consideration public opinion, although there have been cases where a law has been adopted after consultation with citizens and NGOs, such as the law related to the Danube Delta Biosphere.
Occasionally, NGOs prepare their own, alternative drafts. Two such draft laws have been prepared: the law on protected areas and the law on caves. The drafts are presently being circulated for comment and were offered for discussion within the NGO community at a seminar held in B.Herculane in May 1995 to be presented to the ministry when complete.
At central government level, the situation is very similar - i.e. no regular forums for discussion, with NGOs rarely invited to comment on draft laws or policy issues. Sometimes it is even difficult to get a copy of official policy documents or draft laws. There are exceptions, of course - i.e. the Ministry of Waters, Forests and Environmental Protection representatives presented the general environmental strategy at a seminar for NGO comment and have invited NGOs and experts to a discussion related to the Environmental Action Plan (EAP) for Central and Eastern Europe and the elaboration of the National Environmental Action Plan. This ministry has also offered NGOs the opportunity to gain information from the ministry's database.
At a local level, the situation is a bit better since local officials (public authorities) are obliged to meet the public regularly, but this is a requirement of locally elected officials under their party statutes only during elections. Local council have the possibility to include such a rule in their own statute and NGOs and citizens have the right to ask for a meeting with an elected official.
NGOs are rarely directly represented in decisionmaking bodies (central and local), but their opinions may be represented by the elected officials, provided they can convince them. NGOs can convey their message to local government in many ways using non-formal tools - i.e. writing letters of complaint, articles in the local newspaper, commenting and submitting proposals on the issues that are on the agenda of the council, etc. but, because of the lack of organizational capacity and the lack of tradition with participatory democracy, these methods are rarely used.
There are examples where local authorities organize seminars and meetings related to specific environmental issues at county level. In Mures County, for example, between April and June, the County Council organized three seminars on waste problems and water pollution and two NGOs were invited. This was the first occasion when NGO representatives were invited. Unfortunately, there are no instances where NGOs and local authorities and representatives of industry have joined forces to discuss the major problems of public participation.
The business community is even less willing to provide information to the public on environmental issues, citing the necessity of protecting "business secrets" (a notion not clarified by law, especially at state owned companies). However, in some areas, there are business which sponsor the activities of NGOs by funding and in-kind contribution.
Recently, an environmental reporters association was established and NGOs are beginning to work together with journalists from all over the country. Local newspapers regularly focus on environmental issues and act as publicity organs, even if they do not have access to information or play an investigative role, as the Western media tends to.
Cooperation between NGOs at an international level focuses on training and educational activities, but occasionally NGOs work together to solve a concrete environmental issue. A very successful action happened a few years ago when the import of hazardous waste was discovered and stopped, due to the combined efforts of Greenpeace and German and Romanian NGOs. Unfortunately, instruments such as letters of complaint and demonstrations are rare in Romania as a result of the previous regime which suppressed any kind of open, radical protest.
Many local NGOs build up good relationships and levels of cooperation with the local authorities, organizing specific joint actions and events, trying to involve them in understanding the meaning and benefit of public participation. There are several NGOs organizing projects related to the protection of environment and nature which have a strong public participation component.
Generally, however, there have been a few projects related directly to public participation activities, these include Focus Eco Club in Tirgu Mures, TER, Eco Club Transylvania-Cluj and Service Civil International-Bucharest, which were initiated to meet the needs of education and training in public participation. Usually, these programs are organized in partnership with international NGOs, which also support the programs financially or give some expert assistance, such as Milieukontakt, the REC, ELI and AidRom. The largest NGO training project in Romania is a training center run by "People and Environment" in Ploesti, which is organized in cooperation with Milieukontakt, Friends of the EarthGalati and Focus Eco Center Tirgu Mures. TER has a youth project related to the decisionmaking process at the local level which includes training and workshops on how to implement public participation principles. There were several workshops organized in Busteni, Baie Herculane, Baia Mare and one will take place shortly in Tirgu Mures. The financial support provided by international entities is needed because the central and local government authorities are not involved in the implementation of capacity building. There are a few government initiated education and training programs on environmental management, but none of them deal directly with public participation. There are programs (excursions) supported by the Ministry of Youth and Sports which are organized by NGOs and include environmental education elements as well.
In Tirgu Mures, a successful protest meeting was organized by just three NGOs against air pollution and a petition was submitted to close the city center to traffic at the weekend, with the authorities (police) actively collaborating.
The elaboration of the national environmental strategy, which includes NGO suggestions, is another successful case, proving that the NGO movement is getting stronger and its voice is being taken into consideration. In this context, a very good example is the establishment of the Regional Ecological Supervisory Center in the Apuseni Mountains.
In the non-formal field, the biggest achievement is that there is interest in public participation amongst NGOs and the public. Many NGOs work on programs related to public participation and use different methods to target the public, authorities and industry. Several groups have on-going environmental educational and training programs, including public participation and they try to involve local and central government officials, as well as the business community. Public participation advisory services are being set up by some NGOs and legal assistance in environmental issues is provided by NGO lawyers, both for the public and NGOs. The attitude of some authorities at central and local level is improving as they begin to understand the importance of public participation.
In the non-formal field, the greatest problems are the lack of participatory traditions in general, especially in environmental issues. In 1989, before the political and social changes, everything was centrally coordinated and the people were afraid to use their own initiative. Now they are faced with new conditions, new values and it will take time to adapt to the situation; the lack of motivation related to public participation in environmental problems is due to more immediate problems in everyday life - i.e. economic difficulties, unemployment and inflation. At the same time, the activities of the NGO community are uncoordinated, which limits the efficiency and outreach of their impact on the public, the authorities and the business community.
At parliamentary and government levels, there is the need to initiate, elaborate and adopt laws and regulations which would create a framework related to public participation in environmental decisionmaking. This should include the adoption of the environmental protection law and subsequent laws related to different areas of environmental protection, including EIA, permitting and licensing and access to environmental information. Parliament should increase the speed of the law-making process in the environmental field; once proper legal mechanisms are in place, the authorities will be able to enforce the laws and explore the possibilities of public participation.
To this end, the authorities need to be pro-active, open and conscious of public participation to encourage public involvement at the different levels of the environmental decisionmaking process. High-level decisionmaking bodies - i.e. the Parliamentary Committee for the Environment and the respective ministries - should help build confidence between the policymakers and the public, with NGOs providing a path for more regular dialogue between them. Besides regular meetings between NGOs and the public, there should be legal and non-formal mechanisms in place ensuring that public participation is working in practice and implemented when the decisions are made at the local, regional and national level.
There are various ways of involving the public and NGOs in the decisionmaking process, including NGOs providing expert analysis for parliamentary committees on strategic environmental issues, regular and ad hoc meetings between MPs, central government officials and NGOs/the public to discuss environmental policy issues and draft laws, public hearings, etc. At the local level, cooperation between local councils and NGOs/the public could be stronger if public participation provisions were included in the statutes of the municipalities.
NGOs have made impressive progress in institutional development and organizational skills during the last two or three years, but need to be better coordinated in their public participation activities for maximum impact at national, regional and local level. The development of clear, well determined programs related to public participation would help identify priority areas. The benefits of improved cooperation, networking, information and experience sharing, assistance in establishing public advocacy centers within the NGO community and, for the public, in public participation issues (especially in the legal field), would be instrumental in strengthening their accomplishments and providing a more sound basis for acceptance as partners by the decisionmakers.
NGOs need to be more active in using public participation tools and channels in the legal and the non-formal field. The involvement of citizens/NGOs in pollution prevention and in solving different environmental problems may create precedents exerting greater pressure on the authorities to adopt specific regulations for public participation. Even where there are no specific provisions and the procedure is missing or not very clear, the public can participate. The public has to become accustomed to the idea of participation, thus more educational programs need to be developed for citizens and the authorities, initiated by the government and NGOs. The relationship between NGOs and the local community also needs to be strengthened.
NGOs need to learn to cooperate with other forces interested in environmental protection and to create a green lobby at a local and national level, as well as learning how to exploit the media to its full potential. For its turn, the media should focus more on environmental issues, presenting important public participation issues as examples or precedents to be followed and thus educating and raising public awareness.
NGOs and the different government authorities need to make more of an effort to disseminate information to the business sector regarding good practice followed in other parts of the region or in the West, elaborating and implementing voluntary guidelines on public participation together with those who wish to promote this issue.