On October 18-22, 2021, the Seventh session of the Meeting of the Parties to the Aarhus Convention was held in Geneva. The Republic of Kazakhstan presented the “Report on the implementation of the Aarhus Convention in accordance with Decision IV/4” for the period 2017-2020,” as well as the report on the implementation of Decision VI/8g “Compliance by Kazakhstan with its obligations under the Convention,” adopted by the Sixth session of Meeting of the Parties on 11-13 September 2017. But the public of Kazakhstan receives daily confirmation that there are numerous obstacles to the implementation of the norms of the Aarhus Convention.
ACCESS TO INFORMATION
Most of the environmental information received by the public from public authorities is incomplete and / or unreliable
On the example of the requests of the Ecological Society “Green Salvation” (hereinafter— the Ecological Society), it can be seen that state bodies respond to most of the appeals. But the quality of the information they send is low.
The Ecological Society sent inquiries on the following topics:
– the state of the environment in settlements (atmospheric air, water resources, soils and green plantings);
– management of household waste in settlements;
– health status and environmental safety of people;
– the impact of industrial enterprises on the environment and human health (sanitary standards);
– the state of specially protected natural areas;
– development of tourism (in particular, ecological);
– explanations of environmental legislation;
– violations of environmental legislation;
– actions of public authorities to solve certain environmental problems;
– public participation in the decision-making process on issues related to the environment;
– Kazakhstan’s implementation of international environmental conventions.
“Environmental information is publicly available and is not subject to limitation and secrecy” (Environmental Code 2021, article 17, paragraph 2).
Statistics of “availability” of environmental information on the example of queries Ecological Society “Green Salvation”
|Year||Number of letters||Responses received (%)||No responses received (%)||Incomplete and/or inaccurate information is provided (%)|
Inaccurate information is most often provided by the following public authorities:
– Akimat of the city of Almaty, its departments and akimats of districts,
– Committee for Forestry and Wildlife,
– Ministry of Ecology, Geology and Natural Resources of the Republic of Kazakhstan,
– Office of the Prime Minister of the Republic of Kazakhstan,
– General Prosecutor’s Office.
The high percentage of letters containing inaccurate information is explained by the fact that officials bear practically no responsibility for its quality.
Public authority misinforms the public
Example. In 2018, the Department of Tourism and External Relations of the city of Almaty (hereinafter—the Department) provided inaccurate information at the request of the Ecological Society. It concerned the possibility of considering a “zero” option (“the no-action alternative”)—refusal to build—a ski resort in the Kok-Zhailau valley. The Department officially announced that “the term “zero” option was introduced into use and appeared thanks to the appeals and speeches of representatives of the Ecological Society “Green Salvation.”
But the Ecological Society was guided by the “Instruction for Conducting Environmental Impact Assessment” dated June 28, 2007. The assessment was carried out on the basis of a number of principles, including:
“3) alternatives—the assessment of the consequences is based on the mandatory consideration of alternative design solutions … including the option of abandoning the planned activity (“zero” option)” (part 2, paragraph 5, subparagraph 3).
On December 10, 2018, the Ecological Society appealed to the Specialized Inter-regional Economic Court of Almaty with a statement on the protection of its interests and the interests of an indefinite circle of persons.
The claim states that the Department violated the public’s right to access environmental information, enshrined in Articles 4 and 6 of the Aarhus Convention.
The court’s decision says: “The court considers that the information … that “the term “zero” option was introduced into use and appeared thanks to the appeals and speeches of representatives of the “Green Salvation” is unreliable.”
The decision came into force on March 12, 2019.
The spread of disinformation is apparently explained by the desire to present the public in an unfavorable light, to convince the population of the public incompetence.
The Ecological Society has recorded the fact that the Ministry of Ecology, Geology and Natural Resources (hereinafter—the Ministry) provided inaccurate information to the Committee on Compliance with the Aarhus Convention (hereinafter—the Committee)
On October 10, 2020, in accordance with paragraph 6 a) of Decision VI / 8g, the Ministry sent to the Committee a final report “Measures taken to incorporate the comments of Decision VI/8g” in the draft Environmental Code of the Republic of Kazakhstan in the new edition (hereinafter—the Report).
The Committee asked the public to comment on the Report.
After reviewing the document, the Ecological Society had doubts about the reliability of the information contained in the column “measures taken” in paragraphs 3a) and 3e).
It says: “During the implementation of the project for the construction of the Kok-Zhailau ski resort, the public took an active part in the decision-making procedure.
As a result, in accordance with the Law of the Republic of Kazakhstan “On amendments and additions to certain legislative acts of the Republic of Kazakhstan on issues of specially protected natural areas,” the lands of the Kok-Zhailau project were returned to specially protected natural areas.”
But the Report does not indicate on the basis of which legal act, when and to which specially protected natural areas the lands of the Kok-Zhailau valley were returned.
On October 26, 2020, the Ecological Society requested the Ministry to provide information confirming the return of the Kok-Zhailau valley to the lands of specially protected natural areas.
The Ministry announced that it is developing a draft government decree on amendments to the “Rules for the transfer of lands of specially protected natural areas to reserve lands” (hereinafter—the Rules).
“The decision of the Government of the Republic of Kazakhstan on the return of the Kok-Zhailau valley to the Ile-Alatau State National Natural Park will be made after the appropriate amendments to the Rules are made.”
After making sure that the Ministry provided the Committee with inaccurate information, the Ecological Society indicated this in its comments to the Report.
In the response comments of the Ministry it is said: “We believe that the comments provided by the NGO “Green Salvation” to the final report of the Republic of Kazakhstan on the implementation of Decision VI/8g “Measures taken to incorporate the comments of Decision VI/8g” in the draft Environmental Code of the Republic of Kazakhstan in the new edition are unfounded.”
The Ministry initially knew that the lands of the Kok-Zhailau valley were not returned to the Ile-Alatau National Park; nevertheless, it provided the Committee with inaccurate information.
PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES
Weakening of existing rights to public participation in decision-making
In accordance with the 2007 Environmental Code, environmental impact assessment was “mandatory for any type of economic and other activity that may have a direct or indirect impact on the environment and public health” (Article 36, paragraph 1). Public participation was envisaged in the “discussion of the environmental aspects of the proposed activity”, and the documentation on environmental impact assessment included “materials on the consideration of public opinion, drawn up in minutes and containing conclusions based on the results of public discussion” (Article 41, paragraph 1, subparagraph 14).
On July 1, 2021, a new Environmental Code came into force. Now the environmental impact assessment is not mandatory for “any type of economic and other activity.” And public hearings are held only for those activities that are listed in section 1 of Appendix 1 to the Environmental Code. Its 65 article significantly limits the rights of the public to participate in the decision-making process. It says: “1. Environmental impact assessment is mandatory: 1) for the types of activities and facilities listed in Section 1 of Appendix 1 to this Code.”
The screening procedure will also not be an effective tool due to these limitations.
The weakening of existing rights to public participation in the decision-making process, enshrined in the new Environmental Code, contradicts paragraphs 5 and 6 of Article 2 of the Aarhus Convention. Article 6 says: “This Convention shall not require any derogation from existing rights of access to information, public participation in decision-making and access to justice in environmental matters.” Article 5 says: ‘‘The provisions of this Convention shall not affect the right of a Party to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters than required by this Convention.”
Lack of a mechanism for taking into account public opinion
The third 2019 Environmental Performance Review in Kazakhstan notes: “Absence of regulation for due account to be taken of the outcomes of public participation in decision-making and the indication of reasons and considerations on which the decision is based as required by Article 6, paragraph 9 of the Aarhus Convention and by Article 6, paragraphs 1 and 2 f the Espoo Convention.”
The Environmental Code of 2021 and the new “Rules for conducting public hearings” did not eliminate this deficiency. The organizational issues of holding public hearings (in fact, only revealing public opinion) prescribed in them are insufficient to ensure effective public participation. Effective participation: “This implies that the public should have a real practical understanding of the public participation procedures open to them, including various methods in which they may use them effectively and the nature of the results that might be expected from their participation.”
ACCESS TO JUSTICE
Ignoring the norms of international treaties
Judges, with rare exceptions, ignore the normative resolution of the Supreme Court of July 10, 2008 No. 1 “On the application of the norms of international treaties of the Republic of Kazakhstan.”
It states that “… incorrect application by the court of the norms of international treaties of the Republic of Kazakhstan may be the basis for the cancellation or amendment of the judicial act. The misapplication of a norm of an international treaty may consist in the fact that the courts have not applied the norms of international treaties that are to be applied, or have applied the norms of international treaties that are not applicable, or when the courts have allowed an incorrect interpretation of the norms of international treaties.”
Often, judges also do not take into account the normative resolution of the Supreme Court of November 25, 2016 No. 8 “On some issues of the application by the courts of the environmental legislation of the Republic of Kazakhstan in civil cases.” It regulates the application by the courts of the norms of the Aarhus Convention.
Unsatisfactory enforcement proceedings
Example 1. On November 27, 2013, decision of the supervisory board of the Supreme Court was issued on the claim of the inaction of the head of the Department of Sanitary and Epidemiological Surveillance of Almaty. It was expressed in the lack of control over the designation of sanitary protection zones with special signs on the ground. The decision has not been implemented for 8 years.
Since 2013, local residents, with the support of the Ecological Society, have won more than 25 lawsuits against bailiffs and representatives of the Department in order to enforce the decision. In August 2021, by a local court decision, the Department was fined for systematic non-execution of the decision of the Supreme Court.
Example 2. On September 10, 2019, the judicial board for civil cases of the Almaty city court recognized the information provided by the Department for Control over the Use and Protection of Lands (became part of the Department of Urban Development Control of Almaty) as unreliable. The decision of the board was not carried out for a year and a half.
On June 14, 2021, on the submission of the bailiff of the Department of Justice of Almaty, a penalty was charged to the Department of Urban Planning Control by a court ruling. Only after that, on 22 June, it provided the requested information. The enforcement proceedings were terminated.
However, on September 2, 2021, in response to a new request from the Ecological Society, the Department of Urban Planning Control provided information similar to that which the judicial board for civil cases of the Almaty City Court on September 10, 2019 recognized as unreliable.
Preliminary consideration of petition by the Supreme Court
In the Civil Procedure Code of the Republic of Kazakhstan (hereinafter—the CPC), there is a rule on the preliminary consideration of a petition in the cassation instance.
A preliminary petition for revising a judicial act in cassation is examined by a judge of the cassation instance alone (Article 443 of the CPC). Only if judge finds grounds for “reviewing judicial acts,” the case is referred to the court of cassation (Article 444, paragraph 3 of the CPC).
This procedure raises doubts about independence and impartiality, since the decision is made by a judge of the cassation instance alone. The Ecological Society considers that this procedure contradicts the norm of paragraph 2 of Article 9 of the Aarhus Convention, which states: “Each Party shall, within the framework of its national legislation, ensure that members of the public concerned … have access to a review procedure before a court of law and/or another independent and impartial body established by law…”
Lawsuits filed by public authorities in the public interest are considered without public involvement, as third parties
The CPC does not provide for a rule obliging to involve the public as third parties, at the claims of public authorities filed in the public interest. This prevents the public from gaining access to the court proceedings and participating in enforcement proceedings. This significantly limits access to justice.
Paragraph 5 of article 2 of the Aarhus Convention does not restrict the right of a Party “to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters than required by this Convention.”
The 2018 Address of the Constitutional Council of the Republic of Kazakhstan says: “The Constitutional Council has already drawn the attention of public authorities to the unjustifiably frequent introduction of amendments and additions to existing laws and other regulatory legal acts (message of June 12, 2013). This is also stated in the Strategic Development Plan of the Republic of Kazakhstan until 2025 (Initiative 4.1).”
Significant shortcomings of the legislation of Kazakhstan, illegal actions and inaction of public authorities, ineffective access to justice do not allow the public to fully implement the norms of the Aarhus Convention.
This leads to numerous conflicts, the cause of which is the deterioration of the ecological situation: air pollution, illegal construction, massive felling of trees, unauthorized landfills, pollution of water bodies, destruction of national parks, etc.
Currently, the public does not have effective tools, both at the national and international levels, to realize and protect the right of every person to live in an environment adequate to his or her health and well-being.
Kazakhstan is still not a party to the European Convention on Human Rights and its citizens cannot apply to the European Court of Human Rights. Meanwhile, UN Human Rights Council High Commissioner Michelle Bachelet believes that “environmental threats will be the most serious challenge to human rights of our era.”
Violation of the Aarhus Convention entails a violation of the norms of other conventions ratified by Kazakhstan. This is of particular concern in the face of a pandemic and a global environmental crisis: climate change, the rapid loss of biodiversity and environmental pollution that has become alarming.
Seventh session of the Meeting of the Parties to the Aarhus Convention adopted a new decision VII/8 (k) on compliance by Kazakhstan.
Ecological Society “Green Salvation”
October 31, 2021.
 Report on the implementation of the Aarhus Convention in accordance with Decision IV/4: https://aarhusclearinghouse.unece.org/sites/default/files/2021-05/Kazakhstan%20NR%20%20Unofficial%20Translation%20KZ%202017-2020%20%20Track%20Changes.pdf.
 Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Sixth session 11-13 September 2017: https://unece.org/DAM/env/pp/compliance/MoP6decisions/Compliance_by_Kazakhstan_VI-8g.pdf.
 Abolished in connection with the adoption of the “Instructions for the organization and conduct of environmental assessment.” Approved by the order of the Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated July 30, 2021 No. 280. The new Instruction does not contain the option of “the no-action alternative” (see Appendix II to the Convention on Environmental Impact Assessment in a Transboundary Context).
 Measures taken to incorporate the comments of Decision VI/8g: https://unece.org/fileadmin/DAM/env/pp/compliance/MoP6decisions/VI.8g_Kazakhstan/Correspondence_from_Party/Third_progress_report/frPartyVI.8g_13.10.2020_final_progress_report_eng.pdf.
 All of the above documents are published on the website of the United Nations Economic Commission for Europe in Russian and in English: https://unece.org/env/pp/cc/decision-vi8g-concerning-kazakhstan.
 Environmental Performance Reviews. Kazakhstan. Third Review. United Nations. Geneva, 2019, p.49: http://www.unece.org/fileadmin/DAM/env/epr/epr_studies/ECE_CEP_185_Eng.pdf.
 Rules for conducting public hearings. Approved by the order of I.O. Minister of Ecology, Geology and Natural Resources of the Republic of Kazakhstan dated August 3, 2021 No. 286.
 The Aarhus Convention: An implementation guide. Second edition, 2014, United Nations, p. 32.
 Message of the Constitutional Council of the Republic of Kazakhstan dated June 5, 2018 “On the state of constitutional legality in the Republic of Kazakhstan,” clause 3.4: http://ksrk.gov.kz/index.php/solutions/poslanie-konstitucionnogo-soveta-respubliki-kazakhstan-ot-5-iyunya-2018-goda-o-sostoyanii.
 Environmental threats are the most serious human rights challenges: https://news.un.org/ru/story/2021/09/1409802?fbclid=IwAR31OTLN89sX1NVagfDZ7vMNUI03JIjoglcsoWzbDCTUc7w9pTeST0maXJo.