In contrast to other international agreements in which the Parties to the Convention fulfill obligations only before one another, this Convention goes further, aiming to guarantee the rights of citizens and not simply the rights of the Parties. It obliges that “each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters” (Aarhus Convention…, Article 1.).
Based on the provisions of Article 15 of the Convention, the Parties to the Convention resolved at the First Meeting of the Parties in Lucca in October 2002 to create a Compliance Committee. The Committee is obligated to review communications from the public regarding non-compliance with the Convention’s norms.
The Aarhus Convention’s Compliance Committee began its operations at the end of 2003. Two communications (ACCC/C/2004/01 and ACCC/C/2004/02) submitted to the Committee from the citizens of Kazakhstan and the Ecological Society Green Salvation (Almaty, Kazakhstan) in 2004 were among the first that it received.
Having reviewed these communications at the end of 2004 and beginning of 2005, the Committee found Kazakhstan in violation of a number of the Convention’s requirements. The Committee’s conclusions and recommendations were confirmed at the Second Meeting of the Parties in May 2005 by decision II/5a. In accordance with this document, by the end of 2005, Kazakhstan was to present to the Compliance Committee “a strategy, including a time schedule, for transposing the Convention’s provisions into national law and developing practical mechanisms and implementing legislation that would set out clear procedures for their implementation.”
The course of events from April 2005 to August 2006 is described in the following summary.
Literally a few days after the completion of the Second Meeting of the Parties, on May 30, 2005, the law “On International Agreements of the Republic of Kazakhstan” was passed. Article 20 of the law states:
“1. Every active international agreement of the Republic of Kazakhstan is subject to obligatory and conscientious execution by the Republic of Kazakhstan.
2. In the event of a contradiction between international agreements of the Republic of Kazakhstan and the laws of the Republic of Kazakhstan, international agreements of the Republic of Kazakhstan are subject to change, suspension or termination of force.”
The provisions of Point 2 threaten Kazakhstan’s compliance with the Aarhus Convention and contradict Article 4, Point 3 of the Constitution of the Republic of Kazakhstan, which states:
“International agreements ratified by the Republic supersede national laws, effective immediately, except in cases when an international agreement requires the passing of a new law.”
On September 13, 2005, a Deputy of the Mazhilis of Parliament officially raised the question of repealing this article.
On October 22, the government found that Article 20, Point 2 of the law in question is “an obvious violation of Article 27 of the Vienna Convention on the Law of Treaties, in accordance with which a government does not have the right to refer to the provisions of its domestic law as justification for not fulfilling its agreements.” The government noted that the application of Point 2 in practice has already caused difficulties and a negative reaction abroad (Letter from the Government of the Republic of Kazakhstan, October 22, 2005, No. 12-8/5206).
On January 25, 2006, the Mazhilis found Article 20, Point 2 of the law “On International Agreements of the Republic of Kazakhstan” in contradiction with the Constitution and came out in favor of its repeal (Reference System “Yurist”, June 2, 2006).
As of our date of publication, no changes to the law had been made.
In early 2006, preparation of Kazakhstan’s Environmental Code was initiated. According to statements by official bodies, one of the goals of developing the Code is to bring national environmental protection legislation into conformity with the provisions of the Aarhus Convention.
Actions by state bodies
On June 3, 2005, the newspaper “Panorama” (No. 21) published a piece on the results of the Second Meeting of the Parties of the Aarhus Convention in Almaty, with a commentary by the Minister of Environmental Protection, A.S. Samakova. In particular, she said that “one should consider the fact that representatives of Kazakhstan submitted appeals to the Committee as recognition of the real work of the Aarhus Convention (rather than the work on the Protocols) in the Republic. In the course of a few months, a lawsuit will come to trial, brought by an Almaty resident against a cement factory that, in the opinion of the plaintiff, is in violation of environmental norms. In terms of the remaining appeals, the leadership of the Convention’s Compliance Committee considered the government’s actions to be optimal and sufficient to stabilize the conflicts.”
A panel from the Ministry of Environmental Protection met on July 7, and on the agenda was the issue of “Progress Implementing International Conventions in the Field of Environmental Protection.” The presenter, the Director of the Department of Normative/Legal Security and International Collaboration, A.G. Bragin, offered general information on Kazakhstan’s compliance with ratified conventions and protocols. He noted that, “the work to implement conventions does not bear a systemic character: rather, it is observed only in the periods when quarterly reports are presented.” In the portion of the presentation entitled “About Primary Conventions” nothing was said about the work to implement the Aarhus Convention or the results of the Second Meeting of the Parties.
On September 22, the Commission for Human Rights under the President of the Republic of Kazakhstan discussed questions regarding the protection of citizens’ environmental rights. Based on the information presented by the Deputy Minister of Environmental Protection, S. Kesikbaev, the meeting participants came to the conclusion that the right of citizens to an environment favorable for life and health is substantially limited as a result of the influence of such factors as insufficient financing for environmental protection measures and violations of the norms of environmental legislation (www.earthwire.org/cache.cfm?aid=97996).
On October 4, the “Planned Steps to Achieve the Decisions of the Second Conference of Parties to the Aarhus Convention”** was published on the website of the Ministry of Environmental Protection (www.nature.kz/obsuzhdenie/Orhus/plan_orhus.pdf).
On November 21, a public hearing was held at the Kazakh Society for the Protection of Nature regarding the submission of additions to the comprehensive program for improving the environmental situation of the city of Almaty, which is reviewed periodically. In the updated version of the document, there is no mention of measures to improve the environmental situation in the Mountain Giant District and the MVD Settlement, measures that should have been taken in connection with the decision of the Aarhus Convention’s Compliance Committee.
On January 1, 2006, the deadline expired for the Republic of Kazakhstan’s presentation of its strategy and planned measured for executing decision II/5a. On February 3, the Compliance Committee had been sent only the draft strategy, which the Committee began reviewing on March 29-31 at its 11th meeting.
As of the printing of this article, the government had not yet confirmed the draft strategy.
Actions by the Ecological Society Green Salvation
As an interested party, the Ecological Society Green Salvation continued to send inquiries to governmental establishments, attempting to clarify what measures are being taken to implement the decisions of the Second Meeting of the Parties to the Aarhus Convention.
On July 28, 2005, in response to Green Salvation’s inquiry (No. 077, July 22, 2005), the Deputy Director of the Ministry of Environmental Protection, E. Aitkenov, sent “Information on Fulfilling the Obligations of the Republic of Kazakhstan to International Environmental Conventions.” The document consists of general information about compliance to conventions ratified by Kazakhstan.
In particular, the document states that the country has “the greatest experience in the region in terms of implementing the Aarhus Convention.” Yet nothing is said about the Committee’s decisions for Kazakhstan or about the results of the Second Meeting of the Parties.
On December 21, the General Prosecutor’s office responded to an inquiry from Green Salvation regarding the procedure for the application of the statutes of the Aarhus Convention. In the response, it was pointed out that the Convention’s statutes “must be applied on the territory of the Republic of Kazakhstan”. It was also noted that it is necessary to develop and adopt a legal act “regulating the procedure for prescribing, listening to, and then taking into account public opinion on issues” related to the environment.
On February 16-17, 2006 in Geneva, a representative of Green Salvation participated in the work of the Task Force on Access to Justice of the Meeting of the Parties to the Aarhus Convention. Questions were raised about Kazakhstan’s execution of decision II/5a (www.unece.org/env/documents/2006/pp/ece.mp.pp.wg.1.2006.4.e.pdf).
On February 21, Green Salvation sent a letter to the Ministry of Environmental Protection requesting that it report on the measures being taken to execute decision II/5a and to report whether or not the plan of action had been sent to the Compliance Committee.
On February 28, representatives of Green Salvation met with the leader of the National Center for Human Rights, V.A. Kalyuzhny, and discussed issues related to the Aarhus Convention’s Compliance Committee. In April, Green Salvation sent V.A. Kalyuzhny a summary of its judicial experience.
An Internet search on April 7 revealed that the “Strategy for Executing the Recommendations of Decision II/51 of the Second Meeting of the Parties to the Aarhus Convention” was not published on any official site. It was not discussed with the public, but nevertheless was sent to the Compliance Committee. Therefore, Green Salvation requested that the Ministry of Environmental Protection provide this document.
On April 26, Green Salvation received a response from the Ministry, from which it was clear that the requested document is a draft strategy. It was suggested that Green Salvation participate in the discussion of the document and prepare remarks and suggestions.
Experience with the courts
Following the Second Meeting of the Parties, the Ecological Society Green Salvation continued to defend in the courts the rights of citizens to access to information, participation in decision-making processes and access to justice in environmental matters. Green Salvation’s judicial experience graphically demonstrates how the Convention is “observed” in Kazakhstan.
Lawsuit on acknowledging as invalid the second conclusion of the environmental assessment for the construction of the 110 kV high-voltage power line in the Mountain Giant district and the MVD settlement of Almaty city.
Based on the decision of the Committee regarding communication ACCC/C/2004/02 (www.unece.org/env/pp/compliance.htm), the Ecological Society Green Salvation again filed a lawsuit. On April 27, 2005, a lawsuit was filed “On Newly Disclosed Circumstances” against the Almaty City Territorial Department on Environmental Protection.
In accordance with Article 174, Point 1 of the Civil Procedural Code, “Civil matters are to be reviewed and settled within two months’ time.” Yet the review of the primary allegation began only on October 7 (after a delay of more than three months).
On October 10, the court determined that Green Salvation did not satisfy trial requirements. The court considers the decisions made by the Aarhus Convention’s Compliance Committee for Kazakhstan, and the decisions of the Second Meeting of the Parties to the Convention to be voluntary, bearing only the force of recommendations. Therefore, it is not possible to consider them as newly disclosed circumstances.
On October 11, Green Salvation filed an appellate complaint to the Collegium for Civil Affairs of the City Court regarding this determination.
On November 10, the Collegium made the decision to deny the appellate complaint, as it recognized the conclusions of the District court as correct.
On December 1, Green Salvation sent an inquiry to the General Prosecutor requesting clarification on the procedures for applying the statutes of the Aarhus Convention in Kazakhstan.
In the response, received by Green Salvation on December 21, it is explained that the statutes of the Convention “must be applied on the territory of the Republic of Kazakhstan.”
Following the Second Meeting of the Parties, the situation in the Mountain Giant District was not once raised in the media. It should be noted that the newspaper “The Country and the World” published the article “The Price of Cynicism, or is it Worth it to Knowingly Enhance Absurd Precedents?” (December 23, 2005). In this article, a comprehensive critical analysis was given of the actions of government bodies, indicating the need to implement the Aarhus Convention.
On May 31, 2006, Green Salvation appealed to the Collegium for Civil Affairs of the City Court of Almaty with a complaint for review regarding the determination of the District Court and the ruling of the Appellate Collegium.
On June 28, the Collegium for Civil Affairs of the City Court of Almaty reported that the complaint for review was halted in connection with an inquiry undertaken by the Supreme Court.
On August 31, following the return of this matter from the Supreme Court, the Collegium reviewed the complaint. The complaint was denied.
Lawsuit contesting the legality of a normative-legal act
On February 28, 2004, the Ministry of Environmental Protection approved the “Instructions on Conducting Environmental Impact Assessments for Planned Economic or Other Activities During the Development of Pre-Plan, Pre-Project and Project Documentation.” The public did not participate in the discussion of this document. The Ministry believes that the Instructions aid the public in achieving its rights. Point 37 of the Instructions states that “consideration of public opinion is guaranteed…as established in active legislation….” Yet there is no legal act in Kazakhstan that guarantees consideration of public opinion or public participation in the decision-making process.
In order to realize the rights of the public, Green Salvation considers it necessary for the Instructions to be recognized as invalid, and a legal act to be developed in accordance with the requirements of the Aarhus Convention.
On June 22, 2005, Green Salvation and the Ecological Club “Biosphere” (Ridder) filed a lawsuit in the City Court of Astana, seeking acknowledgement that the Instructions are invalid and contradictory to legislation.
On July 14, having reviewed the lawsuit, the Court acknowledged the Instructions as an invalid normative-legal act, as it had not been published. Thus, for over a year and a half the Ministry had been citing a document that did not have legal force.
It was not until August 26 that the Instructions were published in “The Legal Newspaper” without changes to the wording.
On September 4, following the publication of the Instructions, Green Salvation again filed a lawsuit in the Astana City Court to acknowledge their invalidity in connection with newly disclosed circumstances.
The Court decided not to accept the lawsuit. According to the Court, the publication of the Instructions does not qualify as newly disclosed circumstances.
Green Salvation did not appeal this particular decision, as it had filed a lawsuit on the inactivity of the government and other state bodies, in other words, on non-compliance with an international agreement, the decisions of the Compliance Committee and the Second Meeting of the Parties to the Aarhus Convention.
Lawsuit to declare invalid the conclusions of the 2003 and 2004 environmental assessments for the Plant for Construction Materials and Structures No. 3, located in Almaty city
In 2004, citizens L. Gatina, A. Gatin, and L. Konyshkova submitted a communication to the Aarhus Convention’s Compliance Committee. The basis for the appeal (ACCC/C/2004/06; www.unece.org/env/pp/compliance.htm) was the violation of their right to access to justice on environmental matters. The review of the communication began in May 2005.
On November 16, 2005, at the request of L. Gatina and A. Gatin, Green Salvation filed a lawsuit in the Medeisky District Court against the Almaty City Territorial Department on Environmental Protection to recognize as invalid the conclusions of the state environmental assessments for the project to reconstruct the Plant for Construction Materials and Structures No. 3. These assessments were conducted without consideration of public opinion, in violation of national legislation and the Aarhus Convention.
From December 5 to 7, the 10th meeting of the Committee reviewed communication ACCC/C/2004/06.
On January 18, 2006, the Court decided to reject the lawsuit. The District Prosecutor asked the Court to meet the trial requirements, indicating that the Court ignored gross violations by the plaintiffs of national legislation and norms of the Aarhus Convention regarding the execution of environmental assessments. The Court disregarded both the opinion of the District Public Prosecutor and the explanation by the General Prosecutor about the Court’s obligation to apply the Aarhus Convention’s statutes.
On January 18, the District Public Prosecutor issued a protest against the Court’s ruling of January 18, 2006.
On February 1, Green Salvation submitted an appellate complaint to the Collegium for Civil Affairs regarding the District Court’s decision.
On March 23, the Collegium reviewed Green Salvation’s appellate complaint and denied it. The District Prosecutor retracted its earlier protest of the Court’s decision of January 18, 2006.
On March 29-31, the Committee continued reviewing the communication submitted by citizens L. Gatina, A. Gatin and L.G. Konyshkova at its 11th meeting in Geneva.
On April 24, Green Salvation submitted a complaint for review with the City Court.
At its 12th meeting on June 14-16, the Committee made its final decision regarding communication ACCC/C/2004/06, finding the Republic of Kazakhstan not to be in compliance with the requirements of Article 9, Points 3 and 4 of the Convention.
On June 28, the Collegium reviewed Green Salvation’s complaint for review and rejected it.
On July 14, Green Salvation sent a complaint for review to the Supreme Court based on the court rulings the Collegium for Civil Affairs of the City Court of Almaty
On August 10, the Supreme Court reviewed the complaint and did not find grounds for the complaint. This ruling is final; the law does not stipulate its appeal.
Lawsuit on the inactivity of the government and other state bodies; in other words for non-compliance with an international agreement, the decisions of the Compliance Committee and the Second Meeting of the Parties to the Aarhus Convention.
On November 2, 2005, Green Salvation and the Ecological Club “Biosphere” (Ridder) filed a lawsuit in the Saryarkinsk Court in Astana regarding the inactivity of the government and other state bodies with regard to their non-compliance with an international agreement, the decisions of the Compliance Committee and the Second Meeting of the Parties to the Aarhus Convention.
The Court made the decision not to accept the lawsuit. The Court indicated that the Specialized Inter-District Economic Court must review the lawsuit.
On November 23, a lawsuit was filed with the Specialized Inter-District Economic Court of Astana. The Court made the decision not to accept the lawsuit. According to the Court, the Saryarkinsk District Court must review the matter.
On December 9, Green Salvation appealed to the Astana City Court in order to determine which court should review the given lawsuit. The Court determined that the Specialized Inter- District Economic Court must consider the lawsuit.
On January 14, 2006, the Specialized Inter-District Economic Court decided for a second time not to accept the lawsuit, justifying its decision by stating that “non-compliance by the government of an international agreement is not subject to review and settlement by way of civic legal proceedings.”
On January 19, an appellate complaint was submitted to the Astana City Court regarding the decision of the Specialized Inter-District Economic Court.
On February 28, the Collegium for Civil Affairs of the City Court reviewed the appellate complaint, acknowledging the arguments of the Court as legal.
On April 11, a complaint for review was filed with the Collegium for Civil Affairs of the Astana City Court.
On May 2, the Collegium reviewed the complaint for review and rejected the complaint on the same grounds.
On June 5, the Supreme Court reviewed the complaint for review and declared it unfounded. Moreover, the Court indicated that “concrete violations or the threat of violations to the rights, freedoms and legal interests of the subjects are not reflected in the lawsuit.” This ruling is final; the law does not provide for its appeal.
In each instance, from the District Court to the Specialized Inter-District Economic Court to the Supreme Court, there was no acknowledgement of human rights violations as a result of the actions of government bodies, even with regard to those cases that were acknowledged by the Committee.
Citing this summary, we would like to stress again that violations of the rights of citizens to access to information, public participation in decision-making processes, and access to justice regarding environmental matters are observed at all levels of governmental authority. The fact that rights are being violated is recognized by international organizations.
Kazakhstan does not ensure the observation of human rights. Green Salvation has had a wide range of experience with the arbitrary interpretation of national laws and the statutes of the Aarhus Convention. The courts are not governed by the requirements of the Convention. Many bureaucrats, including officials at the Ministry of Environmental Protection, are not familiar with the Convention.
Kazakhstan does not currently have any legal mechanisms to take into account public opinion or any mechanisms for effective public participation in decision-making processes regarding environmental issues.
There are laws in effect in Kazakhstan that impede compliance with the Aarhus Convention.
One of the main reasons for non-compliance with the Convention is that it fosters the real democratization of society and the effective defense of human rights, but this is contradictory to the interests of the ruling elite.
* This summary was prepared based on the lawsuits filed by the Ecological Society Green Salvation and on the basis of documents obtained by the organization from April 2005 to August 2006.
** The Ecological Society Green Salvation sent suggestions and additions to the Plan to the Ministry of Environmental Protection. The text of this letter (No. 095), dated 7 October 2005 (in russian).
the Ecological Society Green Salvation, Herald 2006