|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
December 1, 2004
Additional Information to the 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
1 On May 6, 2003, EPL submitted 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”). The communication has been registered under the symbol ACCC/C/2004/03.
2 On May14, 2003, the Committee, having considered the communication, has on a preliminary basis determined it to be admissible in accordance with paragraph 20 of the annex to decision I/7.
3 At its fifth meeting (September 2004), the Compliance Committee under the Aarhus Convention decided that the substance of communication ACCC/C/2004/03 would be considered at the Committee’s sixth meeting, to be held on 15-17 December 2004 at the Palais des Nations in Geneva.
4 EPL whishes to submit additional information relevant to the substance of the communication.
I Court proceedings provide no effective or sufficient redress
5 Since our communication was submitted, two important decisions were taken by the courts in Ukraine – one directly addressing the substance of the communication and the other highly relevant to the substance of our communication.
6 On October 21, 2004, the High Commercial Court of Ukraine took a decision on our second appeal regarding the environmental expertiza of the TEG of the canal Danube-Black Sea. In our complaint we challenged the decision of the Kyiv Appeal Court, which on February 25, 2004, held that the Ministry of Environment had no obligation to ensure public participation in environmental expertiza.
7 High Commercial Court of Ukraine dismissed our appeal and stated that “…the Law of Ukraine on Environmental Expertiza has no concrete terms of publishing [Environmental Impact Statement] and … the respondent complied with the Law by publishing Environmental Impact Statement on July 3, 2003, in the newspaper Odessa News”.
8 This statement by the High Commercial Court means that the courts deems sufficient publishing Environmental Impact Statement (EIS) seven days before approval of the expertiza by the Ministry. The court did not take into account the purpose of publishing the EIS, namely to ensure effective, timely and adequate public participation.
9 High Commercial Court of Ukraine completely ignored the issue of public participation, which was not addressed by the court at all in its decision.
10 Thus, the courts did not provide an effective remedy to the violation of our right to public participation in the process of environmental decision-making.
11 In addition, the decision of the High Commercial Court of Ukraine, if not reversed by the Supreme Court of Ukraine, can legitimate illegal practice by the public authorities to deny any possibility of public participation as required by the Aarhus Convention.
12 EPL also challenged in Kyiv Commercial Court the environmental expertiza of the Phase I of the project, which was implemented in May –August 2003. Although Phase I of the project is not itself the substance of the communication, it is highly relevant to the issue.
13 The Technical-Economical Grounding for the Investments to Construct Navigable Canal Danube (TEG, also called “Feasibility Study”) provided that the project has to be split into two phases (stages). The Phase I required environmental expertiza as well, and it was carried out with inadequate, if any, public participation.
14 In our initial lawsuit filed on April 22, 2003, EPL asked the Kyiv Commercial Court to oblige the Ministry to provide the documentation of the Evaluation of Environmental Impacts. While the court was considering the suit, the Ministry approved its positive conclusions on the state environmental expertiza, without providing project documentation. For this reason, EPL changed its demands and on May 25, 2003, asked the court to cancel the conclusions.
15 Kyiv Commercial Court took decision on October 28, 2004 – six month after we filed the lawsuit. The court dismissed our lawsuit and stated, in particular, that “the Law of Ukraine on Environmental Expertiza provides for a possibility but not an obligation to involve experts from other [not governmental] organizations and agencies”.
16 This decision of the Kyiv Commercial Court was taken after the above-mentioned decision by the High Commercial Court of Ukraine and reflects the same approach to the question of public participation in environmental expertiza. These decisions lead to the establishment of court practice in Ukraine that is not in compliance with the requirements of the Aarhus Convention. In Ukraine environmental expertiza is the main procedure of environmental decision-making having permitting nature. Establishment of the court practice will legitimate illegal practice of denying public participation in environmental decision-making by the public authorities and general non-compliance of Ukraine with the Aarhus Convention.
17 In any event, the courts are not providing an effective redress to the victims of the violations of the right to public participation, including EPL; taking into account the decision by the High Commercial Court, future court proceedings related to Phase I or Phase II of the Danube-Black Sea canal project are not likely to result in effective protection of the rights granted by the Aahrus Convention.
II the government of Ukraine continues to deny its obligation to ensure public participation
18 The Government of Ukraine made some commitments in the course of the discussions with some international organizations, which became concerned about the environmental impacts of the construction of the Danube – Black Sea canal.
19 Such commitments were made, in particular, during the Joint Mission of the Expert Team of the European Commission and International Conventions to the “Bystroe project” in the Ukrainian part of the Danube Delta (6-8 October 2004). Report of the mission available at http://europa.eu.int/comm/environment/enlarg/bystroe_project_en.htm
20 The commitments made by the Government of Ukraine included those to ensure public participation in the implementation of the Phase II of the project. The report says that “Ukraine made a commitment to carry out a public consultation on the EIA of Phase II at national and international levels, before the continuation of the project is authorized”, see Joint Mission Report, page 9.
21 These commitments are apparently empty, as one can see from recent developments in the court proceeding mentioned above. In course of those proceedings the Ministry of Environment of Ukraine continued to deny its obligation to involve the public and ensure public participation in course of state environmental expertiza in general, and with relation to the canal construction in particular.
22 On October 13, 2004, the Ministry of Environment of Ukraine in its written response to our second appeal filed with the High Commercial Court of Ukraine stated:
“the assertion of the plaintiff [that the Law of Ukraine on Environmental Expertiza provides for an obligation to ensure public participation in the state environmental expertiza] is ungrounded”
“the norms of the Law of Ukraine on Environmental Expertiza provide for a possibility but not an obligation of the Ministry to involve into state environmental expertiza experts from other organizations and agencies, i.e. representatives of the plaintiff [EPL]. Thus, the assertions of the plaintiff [EPL] that the Ministry of Environment violated its [EPL’s] right to participate is ungrounded and has no legal basis”.
23 These statements clearly show the position of the Government of Ukraine. The Law of Ukraine on Environmental Expertiza does provide for public participation. However, the interpretation of the Law of Ukraine on Environmental Expertiza is not the substance of our complaint. The most important issue is the position of the Ministry of Environment.
24 The statements made directly relate to the substance of our communication to the Compliance Committee. The statements were made by the Ministry of Environment of Ukraine in course of the consideration by the High Commercial Court of Ukraine of our lawsuit challenging environmental expertiza of the TEG of the Danube – Black Sea canal.
25 Court proceedings described above, including the statements made by the Ministry of Environment of Ukraine, took place after the visit of the Joint Mission of the Expert Team of the European Commission and International Conventions to the “Bystroe project” in the Ukrainian part of the Danube Delta (6-8 October 2004).
26 In light of the information presented above, there’re all reasons to conclude that the commitments made by the Government of Ukraine, including the Ministry of Environment, during the visit of the joint mission are empty.
27 The Government of Ukraine shows no practical commitment to comply with the Aarhus Convention in the process of realization of the project to construct Danube – Black Sea canal. The commitments made by the Government of Ukraine in recent months are empty and not supported by any practical actions.
28 We ask the Compliance Committee to take this information into consideration in discussing the substance of the communication and in developing possible recommendations by the Committee.