On October 2, 2018, a round table on “Implementation of the Aarhus Convention in Kazakhstan” was held in Astana. It was organized by the Ministry of Energy of the Republic of Kazakhstan, the RSE “Information and Analytical Center for Environmental Protection,” and the OSCE Program Office in Astana.
The participants were presented with a draft concept of the new Environmental Code, amendments to the laws on the use of genetically modified organisms, a plan for development of Aarhus Centers of Kazakhstan, and other materials. In the course of the round table, examples of practical application of the norms of the Convention, in particular, obstacles to access to information and justice in matters related to the environment were discussed.
A representative of the Ecological Society “Green Salvation” made a report on “Violations of the norms of the Aarhus Convention based on the judicial practice of the Ecological Society “Green Salvation.”
See the official material on the website of the OSCE Office in Astana:
https://www.osce.org/programme-office-in-astana/398282
Violations of the Aarhus Convention based on the judicial experience of the Ecological Society “Green Salvation.”
Ecological Society “Green Salvation” (hereinafter—GS) was founded in 1990.
The goal of the society is to protect the human rights to a healthy and fruitful life in harmony with nature and to contribute to the improvement of the socio-ecological situation in the Republic of Kazakhstan.
Since 2002, the organization has been defending human rights in courts.
Between 2014 and 2017 (between the 5th and 6th meetings of the parties to the Aarhus Convention), the GS filed 18 lawsuits.
In 2004, 2007, 2013, the GS (in collaboration with the public) was forced to address the Compliance Committee of the Aarhus Convention. On three statements, the Committee recognized non-compliance with a number of provisions of the convention by the Republic of Kazakhstan.
Staff members of the organization took part in the official discussion of the law “On Environmental Protection in the Kazakh SSR” (1991) and the laws of the Republic of Kazakhstan “On Environmental Protection” (1997), “On Environmental Assessment” (1997), “On specially protected natural territories” (1997 and 2006), “On Land” (2001), “On Tourism Activities in the Republic of Kazakhstan” (2001), the Land Code (2003), amendments to the Law “On Specially Protected Natural Territories” of 2016, and others.
1. Violation of the norms and non-compliance with the requirements of the Aarhus Convention by public authorities.
The most flagrant violations of the Articles 4 and 6 of the Aarhus Convention are comitted by:
– Forestry and Wildlife Committee of the Ministry of Agriculture of the Republic of Kazakhstan,
– Department of Public Health of the city of Almaty, Ministry of Health of the Republic of Kazakhstan,
– Department for Control over the Use and Protection of Lands of the city of Almaty,
– Department of Natural Resources and Environmental Management of the city of Almaty,
– Department of Land Relations of Almaty.
Forestry and Wildlife Committee of the Ministry of Agriculture of the Republic of Kazakhstan.
The court considered the statement from the GS regarding unreliable information about construction of a cableway on the territory of a national park provided by the Forestry and Wildlife Committee. In violation of the Article 65 and part 2 of the Article 218 of the Civil Procedural Code (1999), the judge justified the refusal, citing obsolete 1994 documents submitted by the Committee. They expired more than 20 years ago because of the foundation of the Ile-Alatau National Park (Government Decree No. 228 of February 22, 1996). Following the court decision, the Committee did not provide accurate information. There was an absurd situation. According to the court version, the territory of the illegal construction is not a part of the park. And according to the decision of the Government, land acts, and maps, it is the territory of the national park.
The case is closed. The information is not provided(1).
Department of Public Health of the city of Almaty, Ministry of Health of the Republic of Kazakhstan.
In 2017-2018, the case of the GS about acknowledging the actions of the Department of Public Health of the city of Almaty to be illegal was considered in a court. The Department did not provide environmental information, namely, the sanitary-epidemiological conclusion issued by “U …” LLP.
The Department violated the rights of the public to access environmental information provided for in the Articles 4 and 6 of the Aarhus Convention. The court ruled in favor of the public.
But the Department still:
– does not consider the sanitary-epidemiological conclusion to be environmental information;
– considers the sanitary-epidemiological conclusion to be a commercial secret;
– refuses to recognize the GS as “the public concerned;”
– does not recognize the right of the GS to receive environmental information.
Therefore, the enforcement proceedings continue since February 15, 2018(2).
Department for Control over the Use and Protection of Lands of the city of Almaty.
In 2017-2018, the case of the GS about acknowledging the actions of the Department for Control over the Use and Protection of Lands of the city of Almaty to be illegal was considered in a court. The Department did not provide environmental information, violating the public rights to access information provided for in the Articles 4 and 6 of the Aarhus Convention(3).
In Butakovka gorge on the territory of the Ile-Alatau National Park, there is an abandoned sports complex. Its ruins pose a danger to people and cause damage to the ecological systems of the national park.
The Department:
– provided information only during the trial, but the information provided is not trustworthy
– does not consider the information requested by the GS to be environmental information;
– continues to insist that the provision of environmental information is not within the competence of the Department.
The court ruled in favor of the public.
But enforcement proceedings continue since February 19, 2018 (http://esgrs.org/?p=23261, 2017, case No.8).
Other government agencies mentioned above commit similar violations.
2. Violation of the Aarhus Convention by the judicial authorities.
2.1. When considering cases, the courts, with rare exceptions, do not take into account, and, accordingly, do not apply or incorrectly apply the norms of international environmental conventions.
2.2. Judges, with rare exceptions, ignore the normative resolution of the Supreme Court “On application of the norms of international agreements of the Republic of Kazakhstan”. And it states that “… an incorrect application by the court of the norms of international agreements of the Republic of Kazakhstan may be grounds for a repeal or amendment of the judicial act. An incorrect application of an international agreement may be that the courts have not applied the norms of the international agreements to be applied, or applied the norms of international agreements that are not applicable, or when the courts have misinterpreted the norms of the international agreements.”(4)
2.3. Courts allow arbitrary interpretation and application of laws in the exercise of legal proceedings.
For example, when considering a case on construction of a road to the ski complex “Kokzhailau,”(5) the judge acknowledged that the lands of the specially protected natural territory of the statewide significance are subject to the “Rules for the maintenance and protection of green vegetation in the city of Almaty.” He “justified” his decision by the fact that part of the national park is located in the administrative boundaries of the city(6). The judge of the appeal board of the Almaty city court came to the same conclusion(7). The courts gave an arbitrary interpretation of the paragraph 55 of the aforementioned Rules, in which it is indicated that their action does not apply to specially protected natural territories of the statewide significance.
In addition, the judge allowed arbitrary interpretation of the paragraph 6 of the Article 108 of the Land Code. The latter states that “inclusion of land plots into boundaries of a city, town, or village does not entail termination of a right of ownership or land use rights to these plots.” None of the judges was embarrassed by the fact that the city authorities have no right to interfere in the activities of the specially protected natural territory of the statewide significance.
The judges ruled in favor of the defendant on the question of cutting down “red-book” plants and developing the area of their habitat. During the court hearing, the defendants could not explain under which law such activities were allowed, since according to national legislation, no state authority has the right to issue permits for cutting down “red-book” plants and building in their habitats.
2.4. Courts apply inactive regulations. For example, the organization has filed a lawsuit for acknowledging as illegal of the inventory materials and forest pathological survey of green vegetation prepared in violation of the legislation(8). When preparing these materials, the defendant used a regulatory legal act, which has no legal force on the territory of the national park, and an instruction that is not a regulatory legal act of the Republic of Kazakhstan.
2.5. Courts are not being impartial when considering evidence submitted by the public, and openly take the side of state bodies(9).
On January 8, 2018, a judge of the Supreme Court, having previously considered a petition, refused to submit it to the cassation instance of the Supreme Court. The judge reiterated the arguments of the courts of the first and appeal instances. Judicial acts became the basement for the refusal, not the norms of the law: “The courts determined that “during the forest management works, the boundaries of the national park were specified.” In the Republic of Kazakhstan, there is no a regulatory legal act, according to which the boundaries of national parks are specified during forest management works.
2.6. Judges poorly investigate case files.
On June 27, 2016, a judge of the Supreme Court, after a preliminary review of a petition of the GS regarding the lawsuit about acknowledging the conclusion of the state environmental assessment on the EIA materials of the project “Construction of the road to the Kokzhailau ski resort” and about its cancellation, refused to submit it to the cassation instance of the Supreme Court.
The judge poorly investigated the case file. He did not understand that the case was about the proposed eradication of the “Red Book” plants, and not about the clearings that have already been carried out. In the resolution, he wrote: “The clearings of green vegetation were carried out by the state enterprise “Ile-Alatau SNNP” on the basis of the obtained permits.”(10)
2.7. Judges do not recognize the right of the public to access justice(11).
On November 14, 2016, at the preliminary review of the petition about acknowledging of the material of the inventory and forest pathological examination of green vegetation to be illegal and about its cancellation(12), the judge of the Supreme Court reiterated the arguments of the Specialized Inter-Regional Economic Court (hereinafter—SIEC) of Almaty. He stated that “the disputed material does not create legal consequences for the claimant.”(13)
2.8. Judges mislead international convention bodies.(14)
On May 18, 2016, the Ecological Society “Green Salvation” sent a letter to the Department of Natural Resources and Environmental Management of the city of Almaty, with a request to withdraw the permit for emission to the environment, issued by “U…” LLP. The Department illegally recognized “U…” LLP as the legal successor of “C…” LLP.
The reply to the GS said, “… that “U…” LLP IS A NEW LEGAL SUCCESSOR OF THE FACILITY, NOT THE LEGAL ENTITY, there are no grounds for revoking the permit for emissions into the environment…”
On July 25, 2016, the GS appealed to the SIEC of Almaty but we were refused in accepting the application, because, in the court’s opinion, the case is not subject to consideration and resolution in the order of civil proceedings.
The Appellate Judicial Board of the Almaty City Court dismissed the private complaint of the GS.
On October 26, 2016, the GS sent a petition to the Supreme Court.
On December 12, 2016, a judge of the Supreme Court, after a preliminary consideration of the petition, indicated that “by issuing the emission permit to the ”U…” LLP, the Department allowed them the opportunity to illegally use the conclusion of the environmental assessment issued for ”C…” LLP. The information provided in the Department’s reply is untrue, that is, it is unreliable.”
On January 25, 2017, the cassation instance of the Supreme Court ruled: “The judicial board considers these actions of the Society to be lawful… The Society has the right to receive reliable and complete information from the authorized body and, in case of disagreement with the information received, it has the right to go to court, according to the Article 8 of the Civil Procedural Code for protection of their violated rights and legitimate interests.”
The lawsuit was sent to the court of the first instance for a review from the stage of accepting of the lawsuit.
On February 27-28, 2017, in the Palace of Nations (Geneva, Switzerland), a judge of the Supreme Court of Kazakhstan, Beibut Shermuhametov, took part in the meeting of the 10th Meeting of the Task Force on Access to Justice under the Aarhus Convention. “B.Shermukhambetov reported on significant changes in judicial practice on environmental disputes in civil proceedings, on the adoption of a normative resolution by the Supreme Court of Kazakhstan on this issue. … The judge (B.Shermukhambetov) gave an example of application of the Article 9 of the Aarhus Convention directly by the Supreme Court on the complaint from the GS about acknowledging of a reply of the Department of ecology on issuing of an environmental permit to be untruthful information”: http://sud.gov.kz/rus/news/sudebnaya-praktika-kazahstana-po-primeneniyu-orhusskoy-konvencii-budet-rekomendovana-stranam (date visited: October 01, 2018).
But on April 14, 2017, the lawsuit of the GS was reviewed by a judge of the SIEC of Almaty. He refused to satisfy the claims.
On August 2, 2017, the Almaty City Court refused to satisfy the claim.
On October 23, 2017, a judge of the Supreme Court, after a preliminary consideration of a petition from the GS, refused to satisfy it. The judge concluded that no violations of material or procedural law which had lead to the issuance of the unlawful judicial act were found in the case.
Thus, the illegal decisions of the courts:
– lead to legalization of activities of state bodies, which contradict to international agreements and national legislation;
– pave the way for new, more serious violations of human rights to a favorable environment;
– contribute to the growth of corruption, increase of social tension, and decrease in environmental security;
– impede the development of ecological democracy;
– undermine the credibility of government agencies and the international reputation of the country.
3. Failure by state bodies to execute court decisions.
It is the fifth year that the resolution of the supervisory board of the Supreme Court of November 27, 2013, is not being implemented. The resolution was made at the request of the public about inaction of the head of the Department of Sanitary and Epidemiological Control in the city of Almaty (assignee—the Department of Public Health of Almaty). He did not provide control over marking of sanitary protection zones with special signs on site.(15)
On August 3, 2016, at the request of the claimants, the supervisory board of the Supreme Court issued a new determination. It states that control over the marking of the sanitary protection zones is entrusted to the head of the Department “as an official person—head of a legal entity.”(16)
By a determination of the Medeu District Court of Almaty of September 21, 2017, the Department of Public Health of Almaty was recognized as the successor of the Department of Consumer Protection of Almaty. The determination entered into force on February 5, 2018.
The ruling of the judicial board of the Supreme Court of March 12, 2018, the determination of the Medeu District Court of Almaty of September 21, 2017, and the determination of the Appellate Board of the Almaty City Court of February 5, 2018, remained unchanged, the Department’s private complaint was not satisfied.
Court decisions are not implemented by other government agencies as well!
4. Statistics of requests and responses for the years of 2014-2017.
Statistics of “accessibility of environmental information” based on the experience of the Ecological Society “Green Salvation.”
Sending letters via e-government did not lead to noticeable improvements.
5. Suggestions
– Bring the environmental legislation in compliance with the requirements of the Aarhus Convention.
– Cancel the preliminary consideration of cases in the Supreme Court, it demonstrates its inappropriateness. The outcome of the case depends on the competence of one judge(17), which, in practice, is an obstacle to a fair and impartial trial.
From 2014 through the beginning of 2017, as a result of the preliminary consideration by the Supreme Court, nine petitions of the GS, which were based on the Aarhus Convention, the Convention on Biological Diversity, and the World Heritage Convention, were rejected.
– Introduce an amendment to the Article 294 of the Civil Procedural Code of the Republic of Kazakhstan on changing the deadline for applying to courts on cases related to environmental violations. Three months period is not applicable to the cases related to environmental violations, as they are long-term and continuous. If a polluter continues their activity, then the period should be extended until the environmental pollution is stopped completely.
– Introduce an amendment to the Article 455 of the Civil Procedural Code of the Republic of Kazakhstan. A serious gap in the Code is that decisions of international conventions on Kazakhstan’s compliance with their norms are not recognized in the Code as grounds for revising courts’ decisions. That is, they are not considered to be either newly discovered or new circumstances that are essential for the proper resolution of previously reviewed cases. This significantly reduces the possibility of individuals and legal entities to act in defense of the interests of individual citizens, an indefinite number of persons, and the state.
– Organize specialization of judges or specialized courts to review lawsuits on issues related to the environment.
(1) 2017. Case No.6 about recognizing the actions of the Forestry and Wildlife Committee, which provided untruthful environmental information, to be illegal.: http://esgrs.org/?p=17197.
(2) 2018. Case No.4 Case about acknowledging of the unlawful actions of the republic state enterprise «Department of Public Health Protection of the city of Almaty», which did not provide the requested environmental information : http://esgrs.org/?p=23261.
(3) 2017. Case No.8 about acknowledging the actions of the state municipal enterprise “Department for control over utilization and protection of lands of the city of Almaty”, which did not provide the requested environmental information, to be unlawful: http://esgrs.org/?p=17197.
(4) Regulatory ruling No.1 of the Supreme Court of the Republic of Kazakhstan dated on July 10, 2008, “On application of norms of international agreements of the Republic of Kazakhstan”.
(5) 2016. Case No.3 about acknowledging the conclusion of the state environmental assessment on the materials of the “Environmental Impact Assessment” on the project “Construction of a road to the mountain ski complex “Kokzhailau” to be illegal and about its cancellation (See the case No.10, 2015): http://esgrs.org/?p=12453.
(6) Decision of the SIEC of the city of Almaty No. 2-16009/2015 dated on November 6, 2015.
(7) Resolution of the Appelate Board of the Almaty City Court No.2А-8416/2015 dated on December 28, 2015.
(8) 2016. Case No.7 about acknowledging to be unlawful and revoking of the “Material of inventory and forest pathology examination of vegetation” prepared by “K…” LLC with violation of the legislation of the RK: http://esgrs.org/?p=12453.
(9) 2018. Case No.1 about recognizing the actions of the Forestry and Wildlife Committee, which provided untruthful environmental information, to be illegal: http://esgrs.org/?p=23261.
(10) 2016. Case No.3 about acknowledging the conclusion of the state environmental assessment on the materials of the “Environmental Impact Assessment” on the project “Construction of a road to the mountain ski complex “Kokzhailau” to be illegal and about its cancellation (see the case No.010, 2015): http://esgrs.org/?p=12453.
(11) 2016. Case No.7 about acknowledging to be unlawful and revoking of the “Material of inventory and forest pathology examination of vegetation” prepared by “K…” LLC with violation of the legislation of the RK: http://esgrs.org/?p=12453.
(12) 2016. Case No.7 about acknowledging to be unlawful and revoking of the “Material of inventory and forest pathology examination of vegetation” prepared by “K…” LLC with violation of the legislation of the RK: http://esgrs.org/?p=12453.
(13) Resolution of the Civil Affaires Board of the Supreme Court No.3g-10191-16 dated on November 14, 2016.
(14) 2017. Case No.4 about acknowledging actions of the CSE “Department of Natural Resources and Regulation of Natural Resources Utilization of the city of Almaty” which provided false information, to be unlawful.
(15) 2016. Section No.2. Implementation of court decisions. Case No.1 A ruling of the Review Board of the Supreme Court on the lawsuit about inaction of the director of the Department of the Committee of the State Sanitary and Epidemiological Control in the city of Almaty which expressed in a lack of control over marking of sanitary and protection zones with special signs on-site was adopted on November 27, 2013 (see the case No.9, 2012, and case No.4, 2013): http://esgrs.org/?p=12453.
(16) Resolution of the Civil Affaires Board of the Supreme Court dated on August 3, 2016. Section No.2. Implementation of court decisions. Case No.1: http://esgrs.org/?p=12453.
(17) CPC of RK (with amendments as of July 05, 2018), Article 443.
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