Environment-People-Law, an NGO from Ukraine
Questions to the NGOs
I. Your comments on the national reporting process under the Aarhus Convention:
a. Was the process of the National Implementation Report (NIR) development in your country participatory in general (was it more participatory than the process of the previous NIR development in 2007-2008)?
No, the process of NIR 2010/11 development in Ukraine was not participatory in general. Only because it was clearly required the Government posted its Draft NIR on the Ministry of Environmental Protection web-page. However, the information regarding the availability of the Draft and possibility to comment was posted deeply in the web-page, so only those who closely followed the process of NIR preparation were able to find it. Furthermore, the main reason for the Government to involve NGOs in NIR preparation was not to involve public for the sake of adequacy of the Report, but merely to collect information (legal analysis of national legislation) and use parts of it (those that the Government was comfortable with) in the NIR.
In the previous reporting circle the Government accepted and enclosed in the NIR all of the comments provided by EPL. This time they were much more selective.
b. Was it difficult for you to address the national authority, responsible for the NIR development (was it hard to find their contact information, were they responsive, did they actively disseminate information on the reporting process or provided it only upon your request)?
EPL knew the national focal point of the Aarhus Convention (NFP) before, and thus it was not difficult to contact her. The NFP in general is responsive (communicates both via regular mail and e-mail).
Looking for relevant information in the media and on Ministerial web-page and not finding anything in early October of 2010, we contacted NFP directly and asked her to provide us any information on the state of development of NIR and on possibilities for NGOs to participate. The NFP replied that nothing had been done so far, but she welcomed inputs from the public.
Without any consultation with public as to the concept of the NIR, at the very end of October the first draft NIR was posted on the Ministerial web-page with information on possibility to comment and established deadline – end of November (30 days).
EPL submitted comments before the deadline. Only after the NIR had been submitted to the Secretariat, EPL found out to what extend our comments were taken into account. EPL has never received any letter\note from the Ministry either acknowledging the receipt of our comments or explaining which comments were taken into account and which were not and why.
c. At what stage of the reporting process have you become involved in it (prior to the development of the first draft; during the follow-up consultations on the first (second) draft report, etc.)?
EPL became involved at the stage of commenting of the first and only draft of NIR. As far as we know there was no involvement of public before that stage.
d. Have other stakeholders been involved in developing/discussing the NIR and at what stage?
The Ministry of Environmental Protection of Ukraine only involved its departments and regional offices and has not involved any of other relevant Ministries like the Ministry of Transport, the Ministry of Health Protection, the Ministry of Regional Development and Construction. The Aarhus Convention is still being considered as an exclusive prerogative of the Ministry of Environmental Protection of Ukraine.
e. Have you been asked by the national authority, responsible for the NIR development in your country, to actually draft the text of the NIR or a part(s) of it?
Indirectly. Before the draft NIR was posted on the web-page, the NFP asked EPL to submit any relevant materials we want to see in NFP. EPL replied that we needed to see the governmental draft first in order to comment on it. Later, when EPL provided its comments on draft NIR, we actually drafted its text especially with regard to the third pillar, because the draft NIR on this pillar was completely blank.
f. How effective was your participation (did you manage to provide comments on the structure of the NIR and/or its content; have those comments been reflected in the final text; have you been explained why your comments had not been reflected)?
Within the established deadline EPL provided comments on a 44-pages long draft NIR. We did not comment on the structure because we realised it was too late (late November) to suggest any structural changes. We essentially corrected clear errors, suggested to delete unnecessary information and suggested additional sentences. We actually drafted NIR as to the third pillar from the scratch. The Ministry fully accepted in the final NIR the text EPL suggested for the third pillar and did not reflect any of other comments. The Ministry also has never provided EPL the reasons for rejecting other comments.
g. Has the final text of the NIR been disseminated between those stakeholders who have participated in its development in your country?
No, it was not disseminated between the stakeholders. Neither for the commenting of the final draft, nor for informing those who participated in the process. In two months since it was submitted to the Secretariat the final NIR was posted deep in the web-page of the Ministry without dissemination of any information of availability of final NIR.
h. Do you think the reporting procedure under the Aarhus Convention needs changes? What would you have changed in it then (time and size limits; stages of the NIR development; requirements on other stakeholders involvement, etc.)?
So far I don’t see any need in changes.
i. Are you interested to participate in the next national reporting cycle under the Aarhus Convention and onwards?
EPL is interested to participate for the sake of presenting adequate information for the MOPs. So far people in the Ministry responsible for preparation of the NIRs were not qualified for that job (public relations or environmental background, not legal) and their NIRs made the situation in Ukraine look inadequate and even worse than it is in reality.
j. Have your or any other NGO in your country made an alternative report(s)? If yes, please provide a link to this report
EPL provided an alternative progress report on implementation of MOP3 decisions regarding compliance by Ukraine which was due to the end of November of 2011. It is available here
EPL did not provided an alternative NIR because we hoped that all of our comments would be taken into account as they were in the previous reporting cycle, and because for a long time the final official NIR was not available for public.
II. You comments on the content of the NIR:
a. In general, does the NIR provide a complete picture and reflect the real situation with the implementation of the Aarhus Convention in your country?
No, it does not. It only talks about positive achievements and stays silent on the major problems related to articles 4, 5 and 6.
b. In general, have your government managed to establish and maintain a clear, transparent and consistent framework to implement the provisions of the Aarhus Convention? Have the provisions of the Aarhus Convention been properly transposed into your national legal framework (both on the level of laws, bylaws and regulations)? If not all three pillars have been properly transposed, – which, if any, have been and what is the status of transposition of the other pillars? Has the implementation of the Aarhus Convention in your country reached the local (community) level and has it made a difference with access to information, public participation in decision-making and access to justice in environmental matters at this level?
No, it did not. Since the decision on non-compliance by Ukraine was made in 2005, the Government failed to adopt any normative act (laws, bylaws and regulations) resolving the problems identified by the Compliance Committee. The only positive change is adoption of the Law On access to Public Information which established a procedure for access to all the information held by public authorities on the level established by the Aarhus Convention. However, this Law will become effective only in May 2011, so it is hard to predict whether it will be adequately enforced. The second pillar is the most problematic in Ukraine especially in connection with the adoption of the Law “Urban development activities”. Access to justice pillar is implemented on a legislative level, but the enforcement remains weak.
c. Does your government promote effective implementation of the Aarhus Convention (do the officials and authorities in your country assist and provide guidance to the public in seeking access to information, in facilitating participation in decision-making and in seeking access to justice in environmental matters; does your government promote environmental education and environmental awareness among the public on issues to which the Convention relates; does your government provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection or working on issues to which the Convention relates; does your government promote the application of the principles of the Convention in international forums and within the framework of other MEAs, including better interagency communication and coordination on the national level)?
Generally they do not. Only if additionally paid within the EU sponsored project.
d. Does the public have real access to environmental information in your country? Do you consider your country to be in compliance with the first pillar of the Aarhus Convention (does the person seeking information have to state an interest; is the information supplied in time and in the form requested; are the copies of the actual documentation containing or comprising the requested information made available; how often environmental information is not provided on grounds of confidentiality; do public authorities in your country charge for supplying information and is the amount reasonable; do public authorities in your country possess and update environmental information which is relevant to their functions and make it available to the public in a transparent way; is appropriate information disseminated by public authorities without delay in cases of emergency; does your government publish the national report on the state of the environment and how often; which types of environmental information should have been disseminated more actively and on a regular basis by the public authorities and business in your country)?
On the legislative level Ukraine is in compliance with Article 4 of the Convention. However, enforcement of the relevant provisions of national legislation remains weak and as the result violations of the right for access to environmental legislation occur.
The legislative framework implementing requirements of Article 5 is not in place. Thus, even when the government were willing to provide certain information on a request, it often simply does not possess this information even thought it is relevant to their functions. The information posted on governmental web-pages is very limited. There is at least 3 years delay in publishing the national report on the state of the environment.
d. How effective is the implementation of the public participation provisions of the Aarhus Convention in your country, in particular Article 6 (have there been special regulations enacted in your country detailing out procedures for public participation in decision-making on separate types of environmental issues; within the public participation procedures is the public informed in an adequate, timely and effective manner at early stages of the decision-making process; does the public participation procedure include reasonable time-frames for the different phases, allowing sufficient time for informing the public for it to prepare and participate effectively; does the public concerned have access to all information relevant to the decision-making; do the public participation procedures ensure the right of the public to submit comments and opinions on the proposed decisions; is due account taken of the outcome of the public participation in final decision; does the public have access to the text of the decision taken along with the reasons and consideration on which the decision is based)?
Second pillar is the most problematic in Ukraine. The more or less adequate public participation was embodied in the procedure of environmental expertiza of project documentation (including for construction and reconstruction of objects/facilities adversely effecting or likely to effect the environment). However, so far there has been no regulation adopted establishing clear procedure (reasonable time-frames, requirements for informing, for holding hearings, for considering comments) for public participation in environmental expertiza. That is why regular breaches of the right to participate in environmental decision-making occurred. It was also established by the Compliance Committee in 2005. The legal framework has not been changed since then.
Furthermore, recently the parliament enacted the Law “On urban development activity” which abolished environmental expertiza of project documentation. There is no public participation in the procedure for issuing building permit (the only required permit for new construction) under the new law. Thus the most urgent question for Ukraine is not to establish a clear procedure for PP, but to define relevant decision, which shall be subject to public participation requirements under Article 6.
e. What is the status of implementation of the Almaty amendment on public participation in decisions related to GMOs in your country (give reference) (have the provisions of the amendment been transposed into your national law; has there been a national biosafety framework established in your country; have there been real opportunities for the public in your country to participate in decisions related to GMOs)?
Ukraine has not yet ratified the amendment.
f. Has your country made sufficient efforts to involve the public into adoption of plans, programmes and policies relating to the environment (Article 7)?
Some efforts were made.
g. Does the public have real opportunities to participate in the Strategic Environmental Assessment procedures? Does the public have a possibility to effectively participate in the law drafting process (Article 8) – please give examples of such regulations or other legally binding normative instruments adopted on the national/regional/local level?
There is no SEA in Ukraine. However, there are domestic procedures for public participation in law drafting process. There is the law requiring publication of draft laws and regulations, establishing a commenting period and so on.
h. Do you consider your country to be in compliance with the third pillar of the Aarhus Convention (Article 9)? (If not, what are the main obstacles in access to justice in your country, such as standing, financial barriers, timeliness?)
On the legislative level there are not many problems with the third pillar. The main problematic issues are financial barriers (experts’ and lawyers’ fees), sometimes a bond can be required, and there is a possibility to be sued for damage recovery by an opposing party in the case when one lost its environmental case.
j. In what way the implementation of the Aarhus Convention in your country and in all UNECE region could be improved (list three the most urgent needs/activities which should be addressed/undertaken as part of the implementation effort; who should take the lead in addressing those the most urgent needs)?
Tough sanctions and political pressure by international community and the EU.
k. Should the current text of the Convention be amended and in what part in particular?
l. Any other specific comments you would like to make concerning NIR and implementation of the Convention in general.