The Special Rapporteur on human rights and the environment “has completed a series of six thematic reports on the substantive elements of the human right to a clean, healthy and sustainable environment, including clean air, safe and sufficient water, healthy and sustainably produced food, non-toxic environments, healthy ecosystems and biodiversity and a safe, livable climate. He would like to seek inputs on the procedural or participatory elements of the right to a clean, healthy and sustainable environment, including access to information, public participation and access to justice with effective remedies.”[1]
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Responses to the questionnaire of the Special Rapporteur on human rights and the environment
To the Special Rapporteur on human rights and the environment: hrc-sr-environment@un.org
From Ecological Society “Green Salvation,” Almaty City, Republic of Kazakhstan: gsalmaty@gmail.com
The answers are given based on the practical human rights activities of the Ecological Society “Green Salvation,” (hereinafter—GS) and therefore the answers are given to just a few questions. The answers reflect only the opinion of the organization.
Questions
- What are States’ obligations—and businesses’ responsibilities—related to the rights to access information, public participation and access to justice with effective remedies in environmental matters? What are the major barriers to the full enjoyment of these rights?
Responses
The obligations of the State and the responsibilities of business related to rights of access to information, public participation and access to justice are enshrined in the Environmental Code of the Republic of Kazakhstan 2021.[2]
There are a number of significant obstacles to the full implementation of the rights to access information, public participation and access to justice.
- Subparagraph 5 of paragraph 2 of Article 13 and paragraph 3 of Article 14 of the Environmental Code contradict the norms of paragraph 3 of Article 9 of the Aarhus Convention. In accordance with these articles, the public does not have the right to apply to the court to challenge the legality of actions (omissions) of private individuals that violate the provisions of national legislation related to the environment.
Article 13, paragraph 2: “In order to ensure the right of every person of present and future generations to live in a favorable environment, the state recognizes and guarantees the following rights of the public: …
Subparagraph 5) to apply to the court with an application to challenge the legality of actions (inaction) and decisions of state bodies, local governments, officials and civil servants on environmental issues, including those related to the elimination of environmental damage caused and the suppression of violations of the requirements of environmental legislation of the Republic of Kazakhstan.”
Article 14: “Non-profit organizations in carrying out their activities in the field of environmental protection, in addition to the rights provided for in Article 13 of this Code, also have the right to: …
Paragraph 3) to apply for protection of the rights, freedoms and legitimate interests of individuals and legal entities, including in court, as well as to appeal against the legality of actions (inaction) and decisions of state bodies, local governments, officials and civil servants in the interests of an indefinite number of persons.”
The mentioned norms of the Environmental Code violate and contradict:
– paragraph 2 of Article 13 of the Constitution of the Republic of Kazakhstan according to which: “Everyone shall have the right to legal defense of his rights and freedoms;”
– paragraph 1 of Article 14 of the Constitution of the Republic of Kazakhstan according to which: “Everyone shall be equal before the law and court.”
- The Environmental Code of 2021 does not contain a provision on the mandatory implementation of the environmental impact assessment (hereinafter—EIA) procedure for all types of planned activities. A similar norm existed in the 2007 Environmental Code.
According to paragraph 1 of Article 65 of The Environmental Code of 2021, EIA is mandatory only for activities defined in a special annex to the Environmental Code.
“Article 65. Mandatory nature of environmental impact assessment
- Environmental impact assessment is mandatory:
1) for the types of activities and facilities listed in section 1 of Appendix 1 to this Code, taking into account the quantitative threshold values specified therein (if any);
2) for the types of activities and facilities listed in section 2 of Appendix 1 to this Code, taking into account the quantitative threshold values specified therein (if any), if the obligation to conduct an environmental impact assessment in relation to such activities or such facilities is established in the conclusion on results of screening of the impacts of the planned activity;
3) when making significant changes to the types of activities and (or) the activities of the facilities specified in subparagraphs 1) and 2) of this paragraph, in respect of which an environmental impact assessment was previously carried out;
4) when making significant changes to the types of activities and (or) the activities of the facilities listed in section 2 of Appendix 1 to this Code, in respect of which a conclusion was previously issued on the results of screening of the impacts of the planned activity with the conclusion that there is no need to conduct an environmental impact assessment, in cases where the obligation to conduct an environmental impact assessment of such significant changes is established in the conclusion on the results of the screening of the impacts of the planned activity.”
Even for planned economic activities in specially protected natural areas that are subject to international conventions, mandatory EIA is not provided for. This contradicts not only the rules of the Aarhus Convention, but also the rules of Appendix III of the Convention on Environmental Impact Assessment in a Transboundary Context, which defines “significant adverse transboundary impact.”
“While what would constitute a “significant impact on the environment” is not defined in the Convention [Aarhus Convention], some guidance as to how it is interpreted in other contexts can be found in appendix III to the Espoo Convention and other sources related to EIA procedure.”[3]
The restriction introduced in the 2021 Environmental Code has significantly reduced the scope for public participation in decision-making even in the case of significant environmental impacts. In addition, this contradicts the provisions of paragraphs 5 and 6 of Article 3 of the Aarhus Convention, which states:
“5. 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.
- 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.”
- In accordance with the new Administrative procedural and process-related code of the Republic of Kazakhstan 2020 (hereinafter—APPC),[4] too long deadlines for consideration of applications in administrative courts have been introduced.
According to paragraph 6 of Article 138, paragraph 1 of Article 146, paragraph 8 of Article 168, paragraph 5 of Article 169 of the APPC, the consideration period in all instances is approximately 18 (eighteen) months. This is contrary to paragraph 1 of Article 9 of the Aarhus Convention, violating the requirement for “an expeditious procedure established by law” for review of a decision in court.
In 2004, the Aarhus Convention’s Compliance Committee reviewed the GS application. The Committee came to the following conclusions:
“26. The Committee also finds that the lengthy review procedure and denial of standing to the non-governmental organization in a lawsuit on access to environmental information was not in compliance with article 9, paragraph 1.”[5]
Based on this conclusion, decision II/5a was adopted at the Second Meeting of the Parties to the Convention, which states that the meeting of the parties: “1. Endorses the following findings of the Committee: … (b) The lengthy review procedure and denial of standing to a non-governmental organization in a lawsuit on access to environmental information was not in compliance with article 9, paragraph 1.”[6]
In paragraph 21 of the Findings and Recommendations of the Committee on Communication ACCC/C/2004/01 it is stated: “However, as the time and number of determinations with regard to jurisdiction in this case demonstrate, there appears to be lack of regulations providing clear guidance to the judiciary as to the meaning of an expeditious procedure in cases related to access to information.”
The consideration of the GS application submitted to the court in December 2021 lasted 18 months until the end of May 2023. The case described in Communication ACCC/C/2004/01 lasted 11 months (including the 3 months it took to determine jurisdiction).
GS believes that in Kazakhstan it is still lacks regulations that provide clear guidance to the judiciary on the value of expedited procedures in cases involving access to information.
- Access to justice in Kazakhstan is not fully protected. The decisions of the courts, including the Supreme Court, have not been implemented for years. This contradicts paragraph 18 of the Preamble of the Convention. “[18] Concerned that effective judicial mechanisms should be accessible to the public, including organizations, so that its legitimate interests are protected and the law is enforced,
The eighteenth preambular paragraph contains several important points. The first is that judicial mechanisms should be effective. This includes the notion of the independence, impartiality and professional integrity of the judiciary, which in turn requires the judiciary to have a solid financial base and to be essentially self-regulating. It further requires that the judgements of the judicial authorities should be ultimately enforceable in society.”[7]
- Government bodies do not provide the population with full access to timely, complete and reliable environmental information. Statistics of GS appeals to government agencies show the following:
Year Number of Replies No replies Incomplete or incorrect
requests sent received (%) received (%) information provided (%)
(pieces)
2014 189 67 33 60
2015 252 66 34 48
2016 125 68 32 54
2017 223 70 30 39
2018 132 75 25 42
2019 186 92 8 51
2020 129 91 9 60
- According to subparagraph 1-1) of paragraph 2 of Article 15 of the Constitutional Law of the Republic of Kazakhstan “On the Parliament of the Republic of Kazakhstan and the status of its deputies” of 1995, deputies of parliament have the right of legislative initiative. Article 8 of the Aarhus Convention does not cover laws and amendments to them initiated by members of parliament. “Once the draft legislation is out of the hands of the public authorities and passes to the legislature, it is no longer in “preparation” by a public authority and article 8 would no longer apply.”[8]
On behalf of Ecological Society “Green Salvation”
Sergey Kuratov
October 1, 2023.
© Ecological Society “Green Salvation,” 2023.
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[1] Promoting Environmental Democracy: Procedural elements of the human right to a clean, healthy and sustainable environment: https://www.ohchr.org/en/calls-for-input/2023/promoting-environmental-democracy-procedural-elements-human-right-clean.
[2] Unofficial translation: https://adilet.zan.kz/eng/docs/K2100000400.
[3] The Aarhus Convention: An implementation guide. Second edition, 2014, p.133.
[4] Unofficial translation: https://adilet.zan.kz/eng/docs/K2000000350.
[5] https://unece.org/fileadmin/DAM/env/documents/2005/pp/c.1/ece.mp.pp.c1.2005.2.Add.1.e.pdf.
[6] https://unece.org/fileadmin/DAM/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.7.e.pdf.
[7] The Aarhus Convention: An implementation guide. Second edition, 2014, p.35.
[8] The Aarhus Convention: An implementation guide. Second edition, 2014, p.182.