Updated on March 2010
Prepared by: Yelyzaveta Aleksyeyeva, Senior Lawyer, EPL
EPL as the organization which constantly follows on the process on transposing the provisions of the Aarhus Convention into the domestic legislation, actively uses the rights enshrined in the Convention, as the organization which in 2004 initiated a case in Aarhus Convention Compliance Committee (ACCC) resulting in the decision of the Meeting of the Parties (MOP) in 2005 declaring non-compliance of Ukraine, with a deep regret ascertains a constant failure of Ukraine to comply with the Convention and to fulfill the decisions of the MOP and ACCC.
Ukraine ratified the Aarhus Convention in 1999. Nevertheless, although international agreements ratified by the parliament of Ukraine constitute the part of domestic legislation and can be directly applied, in practice public still experience difficulties with access to environmental information and possibility to participate in decision-making guaranteed by the Convention.
In May 2004, EPL submitted a communication to the ACCC. In February 2005, the ACCC issued its Finding and Recommendations concluding that Ukraine is in non-compliance with article 4 of the Convention (access to environmental information), article 6 (public participation in decisions on specific activities) and article 3 (general provisions – since Ukraine failed to take necessary legislative, regulatory and other measures to establish and maintain a clear, transparent and consistent framework to implement the provisions of the Conventions). The ACCC recommended Ukraine to bring its legislation and practice into compliance with the provisions of the Convention as well as submit to the ACCC, not later than the end of 2005, a strategy, including a time schedule, for transposing the Convention’s provisions into national law and developing practical mechanisms and implementing legislation that sets out clear procedures for their implementation. The Findings and Recommendation of the ACCC were fully affirmed by the MOP (Alma-Ata, 2005) and became binding on Ukraine.
Since Ukraine failed to engage sufficiently with the process of compliance review or to take measures to implement decision of the MOP ― particularly, to submit the abovementioned strategy by the set first deadline and following extended deadlines ― the next MOP (Riga, 2008) issued a caution with regard to Ukraine and one more time obliged Ukraine to adopt a Strategy incorporating clear activities to resolve the problems identified by the ACCC in its findings and recommendations, and in particular including with respect to issues of clear domestic regulation of time frames and procedures for public consultation, commenting and making available to the public the information on which decisions are based. The decision of the MOP in Riga also required that such strategy incorporates capacity-building activities, in particular training of the judiciary and of public officials involved in environmental decision-making and be transposed through a governmental normative act ensuring its implementation by all ministries and other relevant authorities.
On December 27th, 2008, the Cabinet of Ministers of Ukraine finally adopted a Decree on the Approval of Action Plan on Implementation of the Decision of the Parties to Aarhus Convention. Upon consideration of the Action Plan in April, 2009 the ACCC expressed its doubts that the conditions set out in the MOP decision have been fulfilled, expressed its concern of a very general nature of the Action Plan, lack of clarity in step-by-step activities and the overall capacity of the Action Plan even if fully implemented to bring about the compliance with the provisions of the Convention in Ukraine. These findings of the ACCC by the letter of the Executive Secretary of the UNECE were conveyed to the Prime Minister of Ukraine in April, 2009 along with the reminder that the ACCC reserves its right to recommend to the next MOP (2011) to issue a new caution to Ukraine.
II. Current situation
On its 26th Meeting in December 2009 the ACCC considered a report of Ukraine regarding the progress of the implementation of the Action Plan. The representative of the Government declared plans of Ukraine to reform domestic legislation in order to take due account of all the recommendation of the ACCC, in particular the Government reported on the development of three new pieces of legislation: 1) a draft Law of Ukraine “On Amendments to Article 25 of the Law of Ukraine “On Environmental Protection”, 2) a draft Decree of Cabinet of Ministers of Ukraine “On Approval of the Provision and Dissemination of Environmental Information”, 3) a draft Decree of Cabinet of Ministers of Ukraine “On Approval of Public Participation in Decision-making in the Field of Environmental Protection”. However, the texts of these drafts were not submitted to the ACCC for review. The Government also reported on capacity building activities. However, none of those activities were trainings for judiciary or the public officials involved in the decision-making as it was required by the MOP decision.
In order to facilitate Ukraine in bringing its legislation and practice in lines with the Convention, the ACCC set out deadlines for Ukraine to submit the texts of the abovementioned pieces of legislation (in one of the official languages of the UN) for review on its 27th Meeting. The first and the second drafts were submitted to the ACCC, but only in the Ukrainian language which made it impossible for the ACCC to review them. The third draft was submitted neither within the set deadline, nor by the date of this letter. To speed up the process of reviewing the proposed pieces of legislation, EPL prepared and submitted translations of the submitted drafts. Also EPL submitted its comments on those drafts as it was required by the ACCC. The ACCC has not assessed the drafts yet, but due to their poor quality we estimate that the ACCC will not find them to be in lines with the Convention and able to resolve problems identifies by the ACCC earlier.
The third draft ― the draft Decree of Cabinet of Ministers of Ukraine “On Approval of Public Participation in Decision-making in the Field of Environmental Protection” was prepared within the framework of the project on assistance to Ukraine in the implementation of Aarhus and Espoo Conventions sponsored by the European Commission. The draft of the Decree was finalized by the experts and submitted to the Government at the end of January of 2010. Since then it has been going through the process of the ministerial internal approval procedure. From the communication with the officials from the Ministry of Environmental Protection of Ukraine we found out that they do not agree with some crucial provisions of the decree and that the document as designed by the experts will not be approved and thus will not be adopted. For the 27th Meeting of the ACCC held in March of 2010 the Government of Ukraine sent a message notifying the ACCC that the Government has established a working group with the aim to deliver the renewed and supplemented draft legislation on public participation and promised to communicate the renewed draft legislation to the Secretariat as soon as there is a progress.
1. There has been no change either in legislation or practice of public participation in environmental decision-making since the ACCC made its initial findings and recommendations in 2005.
2. The ACCC doubts whether the adopted in Dec, 2008 Action Plan, even if fully implemented, will bring about compliance of Ukraine with its obligation under the Convention.
3. The promised under the Action Plan pieces of legislation have not been adopted yet. The first two drafts designed by the Government itself to the best of EPL’s belief do not go in lines with the Convention. The draft decree designed by the experts within the EC sponsored project will not be adopted as designed.
4. Not a single training particularly for judiciary and public officials involved in the decision-making process on environmental matters were carried out by the government or under the auspices of the Government.
5. There is a high probability that the situation will remain unchanged and the forthcoming MOP (2011) will have to deal with the issue of non-compliance by Ukraine for the third time.