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To: Compliance Committee

of the UN ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

through the Secretariat of the Convention
From: Ecopravo-Lviv (EPL), a non-governmental organization, Ukraine

May 5, 2003



Communication from Ecopravo-Lviv (EPL)

concerning non-compliance by Ukraine with the UN ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

Introduction
1The Government of Ukraine has begun construction of a navigable canal to allow passage of vessels from the Danube River to the Black Sea through the Ukrainian part of the Danube Delta. The Danube Delta is the most important and internationally recognized wetland area in Europe.
2The Ministry of Environment of Ukraine took a decision to permit development of a canal in the core area of the Danube Biosphere Reserve.
3In taking its decision the Ministry of Environment ignored its obligations under the Aarhus Convention and violated our right to participation in the environmental decision-making.
4Having exhausted most national remedies, and facing accelerating preparations by the Government of Ukraine to construct the canal, EPL submits this communication to the Compliance Committee of the UN ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (hereinafter “the Convention”).
I Summary of the Communication
5This communication concerns non-compliance by Ukraine with its obligations under the Convention.
6The Ministry of Environment of Ukraine has permitted construction of a navigable canal Danube – Black Sea in the Ukrainian part of the Danube Delta. Construction of navigable canal of the proposed size falls within the scope of the Convention.
7 The process used by the Ministry of Environment of Ukraine to permit the construction of the canal was to approve Conclusions of the State Environmental Expertiza of the Technical-Economical Grounding for Investments to Construct the Navigable Canal Danube – Black Sea on July 10, 2003. The process of taking the decision on a state environmental expertiza is a permitting procedure within the meaning of the Article 6 of the Convention.
8The Ministry of Environment did not inform the public concerned, including EPL, about its possible decision on the state environmental expertiza and the procedure of taking it, even upon our written request.
9The decision-making procedure and timeframes of the state environmental expertiza of the proposed canal by the Ministry of Environment did not allow any public participation. This includes denial to provide the environmental documentation relevant to the decision-making process and absence of any procedures for public participation.
10 In the process of taking a decision on the state environmental expertiza of the Technical-Economical Grounding for Investments to Construct the Navigable Canal Danube – Black Sea Ukraine has not complied with its obligations under paragraphs 2, 3, 4, 6, 7, 8 and 9 of the Article 6 of the Convention. This violated our right to public participation under Article 1 of the Convention.
11EPL filed a lawsuit against the Ministry of Environment challenging the Conclusions of the State Environmental Expertiza on November 24, 2003. On February 10, 2004 the Commercial Court of Kyiv declared invalid the Conclusions of the State Environmental Expertiza of the TEG of the canal. The court ruled that the Ministry of Environment of Ukraine violated the right of the public (including EPL) to participate in the state environmental expertiza.
12On March 30, 2004, the Kyiv Appeal Court annulled the first instance court's decision and dismissed our suit. The court ruled, in particular, that the Ministry of Environment might involve public into the state environmental expertiza, but had no obligation to do so.

13This communication is filed by Ecopravo-Lviv (EPL), a non-governmental environmental organization based in Ukraine.


14We ask the Compliance Committee to take immediate measures under paragraphs a) and b) of the Article 36 of the Decision I/7 of the 1st MOP of the Convention.
15This communication is not confidential.


II Information about EPL - the communicant
16This communication is filed by Ecopravo-Lviv (EPL), an international environmental law NGO based in Ukraine.
17EPL is a nongovernmental international organization, created in 1994 in order to provide assistance to individuals and legal persons in the protection of environmental rights, to promote the development of the environment protection, environmental education, science and culture.
18Full name of the organization:
Charitable Foundation “Ecopravo-Lviv”

Address: Krushelnytska st., 2, Lviv, Ukraine, 79000

Tel.: +380 (322) 722746

Fax: +380 (322) 971446

e-mail: epac@mail.lviv.ua

web: www.epl.org.ua


19Contact person, authorized to sign for the organization:
Andriy Andrusevych

Executive Director



e-mail: aandrus@mail.lviv.ua

III Ukraine – the State Concerned by this Communication
20Ukraine is the State Party concerned by this communication.
21Ukraine signed the Convention on June 25, 1998.
22On July 6, 1999, the Parliament of Ukraine ratified the Convention (Law of Ukraine N 832-XIV). The ratification instrument was deposited on November 18, 1999.
23The Convention entered into force on October 30, 2001.
IV The facts

1. Background of the situation
24The Danube Delta, where the river enters the Black Sea, is for many wildlife species the ecological heart of Europe. Its waters and diverse habitats provide biodiversity found in few other places. According to scientists at the World Wide Fund for Nature (WWF), the Danube Delta is the most important wetland area in Europe. It is also the largest interconnected reed-bed in the world, the home to 325 species of birds and 75 species of fish, several of both listed in species in European and Ukrainian Red Books and threatened with extinction.
25The Government of Ukraine plans to construct a new canal through the territory of the Ukrainian part of the Danube Delta. These plans began in 2000 by an order of the President of Ukraine to develop ways of resuming the navigation in the Ukrainian part of the Danube Delta. Construction of an object of such magnitude and value requires consent to be given by the Ministry of Environment of Ukraine. This consent is given in the form of positive conclusions of a “state environmental expertiza”, according to Ukrainian legislation.
26Due to the high costs of the construction and the fact that the construction is to be financed from the state budget, the Ministry of Environment of Ukraine first carried out an environmental impact assessment of the technical-economical grounding for investments, as required by law, during 2003. This enabled the Cabinet of Ministers of Ukraine to approve these investments on October 13, 2003.
27A number of environmental organizations in Ukraine and other parts of Europe, including EPL, tried to influence the decision taken by the Ministry of Environment of Ukraine. However, we were not provided with the possibility to express our opinion.
28This communication concerns violations of the Convention by the Ministry of Environment of Ukraine committed in the course of the “state environmental expertiza” of the Technical-Economical Grounding for Investments to Construct of the Navigable Canal Danube – Black Sea.
2. The process of the state environmental expertiza
29By an order of December 15, 2000, the Ministry of Transport of Ukraine requested a state enterprise “Delta-Lotsman” (Delta Pilot) to develop a project and construct a navigable canal Danube – Black Sea in the Ukrainian part of the Danube Delta.
30The first stage of project development consisted of developing a Technical-Economical Grounding for Investments to Construct the Navigable Canal Danube – Black Sea (hereinafter “TEG”). The TEG consists of a set of specified documentation evaluating technical and economical feasibility, environmental impacts and several options for carrying out the activity, as well as other aspects of the planned activity. In the framework of what is called a “complex state expertiza”, this documentation was submitted to the Ministry of Environment of Ukraine for the state environmental expertiza.
31On December 14, 2001, the Ministry of Environment stated its conclusions of the state environmental expertiza and returned the documentation for further improvement.
32On March 7, 2003, the Ministry of Transport issued an order regarding the development of the shipping infrastructure of Danube region. In particular, the order provided for modification to the core zone of the Danube Biosphere Reserve and estimation of costs for the elimination of adverse environmental impacts resulting from the construction of the canal through the Bystre Strait of the Danube.
33In 2003 improved documentation (TEG) was submitted again to the Ministry of Environment of Ukraine for the state environmental impact expertiza. The Ministry of Environment of Ukraine decided to forward the TEG for a preliminary expert scientific environmental assessment. The preliminary expert scientific environmental assessment would later constitute the basis for the official conclusions of the Ministry of Environment.
34On March 25, 2003, the Ministry of Environment of Ukraine sent a letter to the Taras Shevchenko Kyiv National University (KNU) with a request to carry out a preliminary expert scientific environmental assessment of the Technical-Economical Grounding for Investments to Construct the Navigable Canal Danube – Black Sea. Requesting the University to carry out such assessment is in line with regular practice of the Ministry of Environment.
35On April 24, 2003, the developer (state enterprise “Delta-Lotsman”) and KNU signed a contract, for the developer to finance this preliminary assessment by KNU.
36On July 3, 2003, the developer published the environmental impact statement (“statement of environmental consequences of the construction of the canal”) of the proposed construction of the canal in a local newspaper confined to the Odessa region (southern Ukraine).
37On July 4, 2003, the KNU finished the preliminary expert scientific environmental assessment of the TEG.
38On July 10, 2003, the Ministry of Environment of Ukraine approved the Conclusions of the State Environmental Expertiza No105. This approval was the last and final decision of the Ministry of Environment with regards to the environmental assessment of the TEG.
39Subsequently, a positive complex state expertiza (assessment) was approved on July 31, 2003 and the TEG was approved by the Cabinet of Ministers of Ukraine, by its decision of October 12, 2003.

3. EPL’s attempts to exercise its rights under the Convention
40On April 30, 2003, EPL sent a request to the Ministry of Environment of Ukraine, indicating relevant national law and the Convention, with the following questions:
1) did (is) the Ministry of Environment of Ukraine carry (carrying) out a state environmental expertiza of the construction of the canal Danube – Black Sea? If it did, to provide a copy of the conclusions;
2) did the developer publish an environmental impact statement? If it did, to provide us with the name of the mass-media, date of publication and its copy;
3) did the Ministry receive documentation on the planned construction of the canal Danube – Black Sea for an additional (second) state environmental expertiza? If yes, did the Ministry make any conclusions with regards to such assessment?
41Having no reply from the Ministry, on June 3, 2003, EPL sent another letter to the Ministry of Environment asking
1) whether the order of the Ministry of Transport of March 7, 2003, passed the state environmental expertiza. If so, to provide us with the conclusions of the state environmental expertiza;
2) whether the public participation was ensured, as required by national law and Convention?
42Having no reply from the Ministry and having learnt from the mass-media coverage that the Ministry of Environment might be carrying out state environmental expertiza, EPL sent another letter on June 5, 2003 to the Ministry of Environment asking to
provide the documentation of the Evaluation of Environmental Impacts (EEI), that were submitted to the Ministry of Environment by state enterprise “Delta-Lotsman”.
43Under Ukrainian legislation, EEI is developed by the developer and is the environmental part of the TEG.
44On June 10, 2003, the Ministry of Environment of Ukraine sent their reply to our request of April 30, 2003. In that reply:

45The Ministry informed us that by its Conclusions of December 14, 2001, on the state environmental expertiza they returned the TEG for improvement. They refused to provide a copy of the Conclusions claiming them to be interim and that improved documentation was under second review.


46The Ministry informed us that “according to the information from the developer”, the environmental impact statement was being finalized and would be published in near future.
47The Ministry did not indicate whether it received the documentation on the planned construction of the canal Danube – Black Sea for an additional (second) state environmental expertiza. Thus, our third question was ignored.
48Instead, the Ministry “additionally informed” us that on April 24, 2003, the developer (state enterprise “Delta-Lotsman”) and KNU signed a contract, for the developer to finance a preliminary expert scientific environmental assessment by KNU. The Ministry informed us that this preliminary scientific environmental assessment would be the basis for the conclusions of the state environmental expertiza.
49On June 12, 2003, the Ministry of Environment sent us reply to our letter of June 3, 2003. In that reply:
50The Ministry informed us that orders by any ministry do not require environmental impact assessment.
51The Ministry also stated that it could not say whether public opinion was taken into account in the TEG, since improved TEG had not been submitted to the Ministry.
52The Ministry informed us that at that moment KNU was carrying out the preliminary expert scientific environmental assessment under a contract with state enterprise “Delta-Lotsman”.

53On June 18, 2003, the Ministry of Environment sent us their reply to our request of June 5, 2003. In that reply:


54The Ministry said that in addition to an abridged one-volume version of documentation of the Evaluation of Environmental Impacts, the EEI includes 14 additional volumes of various reports and documents. The Ministry said that the EEI was developed for and financed by the state enterprise “Delta-Lotsman” and is the property of “Delta-Lotsman”. For this reason, the Ministry failed to provide the EEI and suggested we ask “Delta-Lotsman” to provide EEI.
55The Ministry also informed us that they expected the adoption of the preliminary expert scientific environmental assessment by KNU by the end of June, 2003.
56Having learnt that Ministry of Environment approved its Conclusions of the State Environmental Expertiza of the TEG, on July 22, 2003, EPL sent a request to the Ministry asking to provide the copies of the Conclusions of the State Environmental Expertiza, including the preliminary expert scientific environmental assessment by the KNU.
57On August 7, 2003, the Ministry of Environment sent their reply to our letter of July 22, 2003. In that reply:
58The Ministry of Environment sent us 1-page Conclusions of the State Environmental Expertiza (a title document) and a 2-page summary part of the preliminary expert scientific environmental assessment by the KNU. The Ministry of Environment stated that it did not have the technical possibility to provide us the full copy of the preliminary expert scientific environmental assessment by the KNU.
59The title page of the Conclusions stated that the preliminary expert scientific environmental assessment by the KNU is an integral part of the Conclusions.
60The numbering of the last two pages of the preliminary expert scientific environmental assessment (summary part) sent by the Ministry suggests that the full copy of the preliminary expert scientific environmental assessment consisted of only 24 pages.
V Provisions of the Convention alleged to be contravened
1. Applicable Provisions of the Convention
a. State environmental expertiza of the proposed construction of the canal falls within the scope of the Article 6 of the Convention
61State environmental expertiza (assessment) is a decision-making process that falls within the meaning of Article 6 of the Convention.

62Article 6.1 (a) of the Convention says:


“Article 6
1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;…”
63State environmental expertiza in Ukraine is a permitting procedure within the meaning of Article 6.1(a) because positive conclusions of such state environmental expertiza constitute a consent to implement a proposed activity. In contrast, negative conclusions of a state environmental expertiza automatically prohibit implementation of the proposed activity. This interpretation of the concept of environmental expertiza is supported by the Convention Implementation Guide1.
64Construction of the navigable canal Danube – Black Sea is one of the activities listed in Annex I to the Convention.
65Paragraph 9 (a) of Annex I says:
“9. (a) Inland waterways and ports for inland-waterway traffic which permit the passage of vessels of over 1 350 tons;”
66According to Decision of Cabinet of Ministers of Ukraine N598 from 13/10/2003, the navigation canal through Bystre Strait2 will have the following parameters:
Length of waterway – 162.2 km

Length of sea access canal – 3.1km.



Projected draught of vessels – 7.2 m
67This means that the canal, which will be 8m deep, will allow passage of vessels with draught up to 7.2m.
68USSR Register of Shipping, register book of sea-going ships of the USSR 1980-1981, specifies technical characteristics of Soviet fleet. As to the vessels with draught up to 7.2 m, the tonnage of such vessels varies from 4,375 tons to 5,657 tons.
69In the Environment Impact Statement the developer declared that this canal will fall within the VII class of inland waterways of class “E”.
70International standards of VII class of inland waterways require that such inland waterways (in this case – navigation canal) shall allow passage of convoys (pushed vessels) of 14,500-27,000 tons. These requirements for VII class inland waterways are set by the European Agreement on Main Inland Waterways of International Importance.
71It is obvious that the planned canal will allow passage of vessels over 1,350 tons. Therefore, the planned activity falls within the scope of paragraph 9 (a) of Appendix I to the Convention.
72Thus, the state environmental impact assessment of the TEG of the canal Danube – Black Sea is a decision that falls within the scope of Article 6 of the Convention.
b. Ukraine’s obligations with respect to EPL’s right to participation under the Aarhus Convention
73Article 1 of the Convention envisages rights to access to information, public participation and access to justice in environmental matters. The Convention sets general and specific obligations on the parties as well as procedures to ensure practical enjoyment of these rights by the public.
74Article 6 of the Convention sets specific obligations on the parties to the Convention, as well as procedures with respect to the right to public participation in decisions on specific activities.
2. Violation by Ukraine of the EPL’s right to participate in decision-making and of the obligations under paragraphs 2-9 of the Article 6 of the Aarhus Convention
75 Under Article 2(5) “non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest”. Its is therefore obvious that EPL, as well as other registered environmental NGOs in Ukraine, are included in the “public concerned” for the purposes of rights, obligations and procedures set by the Convention.
76 The Ministry of Environment of Ukraine did not inform EPL about the state environmental expertiza of the TEG of Danube – Black Sea canal, either by a public notice or individually, as required by paragraph 2 of the Article 6. This is supported by the following.
77In their letter of June 10, 2003, the Ministry of Environment ignored our question as to whether it was carrying out a state environmental expertiza of the TEG of the canal. So we did not have any information mentioned in the subparagraphs a) to e) of the paragraph 2 of the Article 6.
78 In their letter of June 12, 2003, the Ministry stated the improved TEG was not submitted to the Ministry.
79However, in their letter of June 10, 2003, the Ministry of Environment stated that the KNU was carrying out the preliminary expert scientific environmental assessment, which would be the basis for the conclusions of the state environmental expertiza.
80The fact that a preliminary expert scientific environmental assessment was made by KNU means that the Ministry of Environment received an application for the state environmental expertiza (assessment), since KNU could only start preliminary expert scientific environmental assessment upon request from the Ministry of Environment.
81The fact that the contract between “Delta-Lotsman” and KNU was signed on April 24, 2003 (as stated by the Ministry of Environment in their letter of June 10, 2003) means that the Ministry of Environment made such a request before April 24, 2003.
82Thus, the Ministry of Environment started the state environment assessment before April 24, 2003 and was aware of this when received our letter dated April, 30, 2003.
83In fact, as we learnt later in the course of the court hearings, the Ministry of Environment of Ukraine sent a letter on March 25, 2003, to the Taras Shevchenko Kyiv National University (KNU) with a request to carry out preliminary expert scientific environmental assessment of the Technical-Economical Grounding for Investments to Construct of the Navigable canal Danube – Black Sea.
84Paragraph 2 of the Article 6 of the Convention requires that:
“[t]he public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner…”
85The fact that Ministry of Environment did not inform EPL, either by a public notice or individually, and even not upon our written request, of the commencement of the state environmental expertiza and its procedure leads to breach of the obligations set by paragraph 2 of the Article 6.
86The fact that the Environmental Impact Statement of the TEG was published by the developer in local newspaper in Odessa region does not contradict the arguments above. This publication is required by Ukrainian law before the commencement of a state environmental expertiza. If done in a proper and timely manner it could constitute the public notice within the meaning of the Article 6(2).
87 However, the published Environmental Impact Statement did not contain any information of the possibilities for public participation. Furthermore, it was published on July 3, 2003, - just 7 days before the final decision by the Ministry of Environment. Thus, it did not allow for any public participation. Therefore, this supports the conclusion that the obligation to inform the public concerned was violated by the Ministry of Environment.
88The Ministry of Environment did not provide to EPL access to the documentation of the TEG, in particular its environmental part – the Evaluation of Environmental Impacts (EEI), as required by paragraph 6 of the Article 6 of the Convention.
89In our letter of June 5, 2003, we asked the Ministry of Environment to provide the documentation of the Evaluation of Environmental Impacts (EEI), that were submitted to the Ministry of Environment by state enterprise “Delta-Lotsman”.
90In their letter of June 18, 2003, the Ministry of Environment said that in addition to the abridged one-volume version of documentation of the Evaluation of Environmental Impacts, the EEI included 14 additional volumes of various reports and documents. The Ministry said that the EEI was developed for and financed by the state enterprise “Delta-Lotsman” and was the property of “Delta-Lotsman”. For this reason, the Ministry suggested that we ask “Delta-Lotsman” to provide the EEI.
91Paragraph 6 of the Article 6 of the Convention states that
“Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4.”
92In their reply the Ministry of Environment refused to provide access to EEI on the basis that “EEI is the property of the developer”.
93There is no exemption in Article 6 to allow withholding of environmental documentation on the basis that it is the “property of the developer.”
94If an exemption was made under paragraph 4 (e) of the Article 4 of the Convention, in this situation this is not a justified exemption for several reasons.
95The intellectual property laws do not, as a general manner, protect principles of nature and scientific facts – the primary content of the analysis of environmental impacts.
96Any exemption made under Article 6 (6) of the Convention (and, accordingly, Article 4(4)), is subject to the limitations set by paragraphs 4 and 6 of the Article 4, namely, consideration of the public interest served by the disclosure and the obligation to separate and make available the remainder of the environmental information.
97 The public concern regarding possible impacts by a proposed construction on a wetland area of recognized national and international importance constitutes a high public interest and justifies the disclosure of the information.
98The Ministry of Environment was under obligation to provide us the information requested (EEI) under paragraph 6 of the Article 4 of the Convention because it was a purely environmental documentation (EEI) already separated from the economical and technical documentation of the TEG of the canal.
99Therefore, by denying access to the TEG, and in particular its environmental part, the Ministry of Environment was in breach of its obligations under paragraph 6 of the Article 6 of the Convention.
100Taking into account that EPL was not informed of the proposed activity and was denied access to the relevant documentation, we had no possibility to participate in the state environmental expertiza of the TEG of the canal.
101The Ministry of Environment took no measures to ensure effective and early public participation in its decision on the proposed canal.

102Having no information about the proposed activity, we could not submit any comments, either at a public hearing or in writing.


103Therefore, Ukraine was in breach of its obligations under paragraphs 3, 4, 7 and 8 of the Article 6 of the Convention when taking its decision on the state environmental expertiza of the TEG of the canal.
104In the letter of August 7, 2003, the Ministry of Environment refused to provide a full copy of the Conclusions of the State Environmental Expertiza of the TEG. The Ministry based its refusal on absence of the “technical possibility” to provide the full 24 pages.
105The numbering of the last two pages of the preliminary expert scientific environmental assessment (summary part) sent by the Ministry suggests that the full copy of the preliminary expert scientific environmental assessment consisted of 24 pages.
106The Convention does not contain a provision with such a ground for refusal to provide documentation requested. Moreover, paragraph 9 of the Article 6 of the Convention says:
“9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.”
107By refusing to provide upon our request the full text of its decision (the Conclusions of the State Environmental Expertiza of the TEG), the Ministry of Environment violated the obligations set by the paragraph 9 of the Article 6 of the Convention.
108Therefore, non-complying with its obligations under paragraphs 2, 3, 4, 6, 7, 8 and 9 of the Article 6 of the Convention , Ukraine violated our right to public participation under Article 1 of the Convention.
3. Nature of alleged non-compliance
109This communication concerns a specific case of non-compliance, as described above.

VI Domestic and International Remedies Used by EPL
1. Domestic Remedies Used
110EPL has exhausted most national remedies to protect its right to participate under Article 6 of the Convention.
111On November 24, 2003 EPL filed a suit against the Ministry of Environment of Ukraine challenging Conclusions of the State Environmental Expertiza of the TEG of the canal. In particular, we argued for the violations of our right to participation under the Convention.
112On February 10, 2004 the Commercial Court of Kyiv took a decision in favor of EPL. The court ruled that the Ministry of Environment of Ukraine violated the right of the public (including EPL) to participate in the state environmental expertiza and declared invalid Conclusions of the State Environmental Expertiza of the TEG of the canal.
113On February 25, 2004, the Ministry of Environment appealed this decision to the Kyiv Appeal Court. In the course of the court hearing the Ministry of Environment denied its obligation to ensure public participation in the state environmental expertiza.
114On March 30, 2004, the Kyiv Appeal Court annulled the first instance court's decision and dismissed our suit. In dismissing our suit, the Kyiv Appeal Court ruled, in particular, that the Ministry of Environment might involve public into the state environmental expertiza, but had no obligation to do so. The court also ruled that the failure to provide the documentation requested under Article 6 of the Convention could not be a part of the suit challenging a particular decision (Conclusions of the State Environmental Expertiza of the TEG of the canal).

115The decision by the Kyiv Appeal Court is final, as all further possible appeal procedures do not suspend its decision. In other words, the construction of the canal can begin and continue during all further appeal procedures.


2. International Remedies Used
116EPL has filed a complaint with the Implementation Committee of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) claiming that Ukraine violated the Espoo Convention by not carrying out environmental impact assessment in a transboundary context and failure to allow for international public participation.
117At the meeting on December 16-18, 2003, the Implementation Committee dismissed our complaint on procedural grounds (claiming it could not consider a submission from a non-Party).
VII Conclusions
118In the process of taking a decision on the state environmental expertiza of the TEG of the canal Danube – Black Sea Ukraine has not complied with its obligations under paragraphs 2, 3, 4, 6, 7, 8 and 9 of the Article 6 of the Convention.
119 By not complying with its obligations under paragraphs 2, 3, 4, 6, 7, 8 and 9 of the Article 6 of the Convention Ukraine violated our right to public participation under Article 1 of the Convention.
120We are submitting this communication under Section VI of the Decision I/7 of the first Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
121 Facing accelerating preparations by the Government of Ukraine to construct the canal, including installations of buoys at the entrance to the Danube River and the imminent arrival of a dredging ship from Germany to take initial steps to deepen the passage, we ask the Compliance Committee to take measures under the Article 36 a) and b) of the Decision I/7 of the 1st MOP of the Convention.

Sincerely,


[signed]
Andriy Andrusevych

Executive Director



1 The Aarhus Convention: An Implementation Guide. NY-Geneva, 2000. Page 90.

2 Bystre Strait is one of the arms of the Kiliyske Mouth of Danube on Ukrainian territory.


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