Архив рубрики: Human Rights

UN declares access to clean and healthy environment a universal human right

29.07.2022 admin

With 161 votes in favour, and eight abstentions*, the UN General Assembly adopted a historic resolution on Thursday, declaring access to a clean, healthy and sustainable environment, a universal human right.

The resolution, based on a similar text adopted last year by the Human Rights Council, calls upon States, international organisations, and business enterprises to scale up efforts to ensure a healthy environment for all.

The UN Secretary-General, António Guterres, welcomed the ‘historic’ decision and said the landmark development demonstrates that Member States can come together in the collective fight against the triple planetary crisis of climate change, biodiversity loss and pollution.

“The resolution will help reduce environmental injustices, close protection gaps and empower people, especially those that are in vulnerable situations, including environmental human rights defenders, children, youth, women and indigenous peoples”, he said in a statement released by his Spokesperson’s Office.

He added that the decision will also help States accelerate the implementation of their environmental and human rights obligations and commitments.

“The international community has given universal recognition to this right and brought us closer to making it a reality for all”, he said.

Guterres underscored that however, the adoption of the resolution ‘is only the beginning’ and urged nations to make this newly recognised right ‘a reality for everyone, everywhere’.

Urgent action needed

In a statement, UN High Commissioner for Human Rights Michelle Bachelet also hailed the Assembly’s decision and echoed the Secretary-General’s call for urgent action to implement it.

“Today is a historic moment, but simply affirming our right to a healthy environment is not enough. The General Assembly resolution is very clear: States must implement their international commitments and scale up their efforts to realize it. We will all suffer much worse effects from environmental crises, if we do not work together to collectively avert them now,” she said.

Ms. Bachelet explained that environmental action based on human rights obligations provides vital guardrails for economic policies and business models.

“It emphasizes the underpinning of legal obligations to act, rather than simply of discretionary policy. It is also more effective, legitimate and sustainable,” she added.

A resolution for the whole planet

The text, originally presented by Costa Rica, the Maldives, Morocco, Slovenia and Switzerland last June, and now co-sponsored by over 100 countries, notes that the right to a healthy environment is related to existing international law and affirms that its promotion requires the full implementation of multilateral environmental agreements.

It also recognises that the impact of climate change, the unsustainable management and use of natural resources, the pollution of air, land and water, the unsound management of chemicals and waste, and the resulting loss in biodiversity interfere with the enjoyment of this right — and that environmental damage has negative implications, both direct and indirect, for the effective enjoyment of all human rights.

According to the UN Special Rapporteur on Human Rights and the Environment, Mr. David Boyd, the Assembly’s decision will change the very nature of international human rights law.

“Governments have made promises to clean up the environment and address the climate emergency for decades but having a right to a healthy environment changes people’s perspective from ‘begging’ to demanding governments to act”, he recently told UN News.

A victory five decades in the making

In 1972, the United Nations Conference on the Environment in Stockholm, which ended with its own historic declaration, was the first one to place environmental issues at the forefront of international concerns and marked the start of a dialogue between industrialized and developing countries on the link between economic growth, the pollution of the air, water and the ocean, and the well-being of people around the world.

UN Member States back then, declared that people have a fundamental right to «an environment of a quality that permits a life of dignity and well-being,» calling for concrete action and the recognition of this right.

Last October, after decades of work by nations at the front lines of climate change, such as the Maldives archipelago, as well as more than 1,000 civil society organisations, the Human Rights Council finally recognised this right and called for the UN General Assembly to do the same.

“From a foothold in the 1972 Stockholm Declaration, the right has been integrated into constitutions, national laws and regional agreements. Today’s decision elevates the right to where it belongs: universal recognition”, UN Environment chief, Inger Andersen, explained in a statement published this Thursday.

The recognition of the right to a healthy environment by these UN bodies, although not legally binding— meaning countries don’t have a legal obligation to comply— is expected to be a catalyst for action and to empower ordinary people to hold their governments accountable.

“So, the recognition of this right is a victory we should celebrate. My thanks to Member States and to the thousands of civil society organizations and indigenous peoples’ groups, and tens of thousands of young people who advocated relentlessly for this right. But now we must build on this victory and implement the right”, Ms. Andersen added.

Triple crisis response

As mentioned by the UN Secretary-General, the newly recognised right will be crucial to tackling the triple planetary crisis.

This refers to the three main interlinked environmental threats that humanity currently faces: climate change, pollution and biodiversity loss — all mentioned in the text of the resolution.

Each of these issues has its own causes and effects and they need to be resolved if we are to have a viable future on Earth.

The consequences of climate change are becoming increasingly apparent, through increased intensity and severity of droughts, water scarcity, wildfires, rising sea levels, flooding, melting polar ice, catastrophic storms and declining biodiversity.

Meanwhile, according to the World Health Organization (WHO), air pollution is the largest cause of disease and premature death in the world, with more than seven million people dying prematurely each year due to pollution.

Finally, the decline or disappearance of biological diversity — which includes animals, plants and ecosystems — impacts food supplies, access to clean water and life as we know it.

* States who abstained: China, Russian Federation, Belarus, Cambodia, Iran, Syria, Kyrgyzstan and Ethiopia.

https://news.un.org/en/story/2022/07/1123482

Human Rights, Legal Proceedings, News

Summary of Lawsuits in 2019 by the Ecological Society Green Salvation*

19.02.2020 admin

* Ecological Society Green Salvation (hereafter, GS)

SECTION No.1

No. 1

Case about acknowledging of inaccurate information provision by the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» to be an illegal action, and about obliging it to provide complete and accurate environmental information (see the case No. 6, 2018).

Background.

On May 21, 2018, a citizen K… and other residents of Velikolukskaya street of Turksib District of the city of Almaty, addressed the Head of the Municipal State Enterprise (MSE) «Department of land relations of the city of Almaty» with a statement. It was forwarded for consideration on the merits to the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» (hereinafter — Department).

On July 4, citizen K… received a response from the Department, which states that the land plot at the requested address belongs to citizen Y… with a designated purpose — non-residential premises — and is located in a commercial zone.

In accordance with the official response of the MSE «Department of Architecture and Urban Planning of the City of Almaty», with an attached diagram and a reference to the decision of the Maslikhat of Almaty (local representative body), the indicated land plot is located in a residential zone.

Due to the contradictions in the responses of the state authorities, a lawsuit was filed to the court.

The lawsuit in the interests of citizen K… was submitted to the Almaly District Court No.2 of the city of Almaty on September 14, 2018.

MSE «Department for control over use and protection of lands of the city of Almaty» is brought to the court as a defendant.

Legal violations:

Violated the right of the citizen K… on access to environmental information, in particular, the following norms:

— paragraph 2, Article 20 of the Constitution of the Republic of Kazakhstan;

— Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;

— subparagraph 7, paragraphs 1, Article 13 and paragraphs 1, Article 163 of the Environmental Code;

— paragraph 4, Article 6 and Article 18 of the Law «On Access to Information»;

— paragraph 18 of the normative resolution of the Supreme Court of November 25, 2016 No. 8 «On some questions of application by courts of environmental legislation of the Republic of Kazakhstan in civil matters».

Demands:

To acknowledge the provision of misleading information by the Department to the Ecological Society to be an illegal action.
To oblige the Department to provide the Ecological Society »Green Salvation» with the requested environmental information.
To issue a private court ruling in relation to the head of the Department, in accordance with Article 270 of the Civil Procedural Code.

On October 2, review process of the case began.

On November 2, the court rejected the application. The judge allowed an arbitrary interpretation of the concepts of the law «On architectural, urban planning, and construction activities in the Republic of Kazakhstan» and ignored the decision of the XXVI session of Maslikhat of Almaty dated on November 20, 2006, No. 284, namely: «Plan for implementation of urban planning regulations for development of functional areas of the city of Almaty».

For example, the court decision states that the master plan of the city development, that establishes zoning, planning structure, and functional organization of the territory, is only a plan, an intention! And that there is no evidence in the case file that «at the present time, these urban planning regulations have been implemented or their implementation has begun on the territory of Turksib district…»

The judge simply dropped the question of zoning.

On December 7, the GS filed an appeal to the Appeals Board of the Almaty City Court.

On March 6, 2019, the Board cancelled the decision of the District Court and passed the case to the court of the first instance for a new trial by a different panel of judges.

The ruling indicates that during the case trial the court did not consider the Aarhus Convention provision and the regulatory decree of the Supreme Court dated on November 25, 2016, No.8 »On certain questions of courts’ application of environmental legislation of the Republic of Kazakhstan in civil cases.»

On April 30, the case trial began.

On May 20, the judge of the District Court No.2 of the Almaly District rejected the application. He justified the rejection explaining that citizen K… has allegedly appealed to the state body (Department for Control of Use and Protection of Lands of the city of Almaty), which is not authorized to respond to inquiries about zoning of the city territory. In addition, she has allegedly received a reliable answer about zoning of the territory from the Department of Architecture and Urban Planning of the city of Almaty.

The judge completely misrepresented the facts. Citizen K… did not contact the Department of Architecture and Urban Planning and did not receive a reply from them. She appealed to the Department for Control of Use and Protection of Lands with a request to check whether the neighboring land plot was used in accordance with the intended purpose. The latter provided her with false information.

On June 27, the GS filed a complaint with the Appeals Board of the Almaty City Court.

On September 10, the Appeals Board satisfied the demands of the GS. The court ruling said: «To cancel the decision of the District Court No. 2 of Almaly District of the city of Almaty dated 05/20/2019 on this civil case, to make a new decision in the case to satisfy the appeal of the Ecological Society «Green Salvation» in the interests of K… To recognize as illegal the provision by the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» of inaccurate (incomplete) information in the reply dated on 06/27/2018. To oblige the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» to completely eliminate the violations and restore the violated rights and lawful [interests] of the Ecological Society «Green Salvation» … by providing the Ecological Society «Green Salvation» with the requested information within one months from the date the decision comes into force.»

The decision of the judicial board comes into force from the moment of its announcement.

The trial is completed. Enforcement proceedings continue. (see Section No. 2. Implementation of court decisions, case No. 3).

* * *

No. 2

Case about acknowledging the inaction of the MSE »Department for Control of Use and Protection of Lands of the city of Almaty» to be illegal and obliging it to fully eliminate the allowed violations (see the case No. 7, 2018).

Background.

After studying the situation on-site and the letter provided by the Department dated on October 12, 2018, the Ecological Society came to the conclusion that the Department is not fulfilling its direct responsibilities in controling protection and use of the lands. The ruins located on an abandoned site within the Ile-Alatau National Park pose a serious threat to lives of the park visitors. The deteriorated building is turning into a dumpsite for construction waste, which is being spread by wind and washed out by water. This damages ecosystems of the park and its tourist attractiveness.

The lawsuit in the interests of undefined number of individuals and the state was filed to the Specialized Inter-regional Economic Court (hereafter – SIEC) of the city of Almaty on November 28, 2018.

The »Department for control over use and protection of lands of the city of Almaty» is brought to court as a defendant.

Violations:

According to the Article 148 of the Land Code and the requirements of the paragraphs 15 and 16 of the Provision on the MSE »Department for Control of Use and Protection of Lands of the city of Almaty», the Department has the right to:

— submit materials on violations of land legislation to the relevant authorities to resolve the issue of bringing those responsible to justice;

— make decisions on administrative penalty for violation of land legislation;

— prepare and bring claims to the court on issues of compensation for damage as a result of violation of land laws, of expropriation of land plots that are not used for their intended purpose or used in violation of the law;

— give binding instructions on land protection and elimination of violations of land legislation to landowners and land users.

In the case mentioned above, the Department took no action.

Demands:

To recognize as illegal the inaction of the »Department for Control of Use and Protection of Lands of the city of Almaty».
To oblige the Department to eliminate the violations in full.
To issue a private court ruling in relation to the head of the Department, in accordance with the Article 270 of the Civil Procedural Code.

On December 26, the case trial began.

From January 4 to January 21, 2019, several court hearings were held. The representative of the Department did not provide feedback on the GS’s appeal, thereby violating the provisions of Article 166 of the Civil Procedural Code. No documents about a carried out inspection of the environmental condition of the land plot were provided.

On February 20, the judge of the SIEC of the city of Almaty refused to satisfy the appeal. He claims, without reference to documents, that the defendant conducted an audit and that the site was «formally used for its intended purpose». The judge points to the laws: «The applicant mistakenly believes that since the sports complex is partially destroyed and not used, this is the basis for issuing orders to the owner to eliminate violations of land legislation on the use of the land for its intended purpose. However, in the court’s opinion, the Department’s competence does not include the obligation to control damaged and destroyed buildings.»

The judge ignored subparagraph 4 of paragraph 3 of Article 93 of the Land Code, indicating that «the use of the land, which led to a significant deterioration of the environmental situation», is a violation of the law.

On March 19, the GS filed a complaint with the Appeals Board of the Almaty City Court.

On May 22, the Board rejected the complaint.

The judges justified the refusal by explaining that the Department has allegedly provided the answers to the GS and checked the use of the land for compliance with the intended purpose.

On June 26, the GS submitted an application for familiarization with the case materials. The GS believes that due to the fact that the documents confirming the fact of the audit were not presented to the representative of the GS in the court, they are not in the case, the court actually falsified the evidence.

On October 10, the GS filed a petition with the Supreme Court.

On November 18, a judge of the Supreme Court, having examined the application in advance, refused to refer it to the cassation instance of the Supreme Court. The judge reiterated the arguments of the courts of the first and appeal instances. When a representative of the GS was looking through the case materials, it was found that the documents confirming the defendant’s verification of the intended use of the land plot are not in the materials of this civil case. That is, the court actually falsified the evidence.

The case is closed. Violations are not resolved.

* * *

No. 3

Case about acknowledging the act of providing of untruthful information by the MSE »Department of tourism and external relations of the city of Almaty» to be an illegal action and obliging it to provide accurate environmental information.

(see the case No. 8, 2018).

Background.

According to the opinion of the Department, stated in its reply of November 26, 2018 to the request of the Ecological Society »Green Salvation», «… the term «zero» construction option was put into use and appeared due to appeals and speeches of representatives of the GS »Green Salvation».

This is not true, that is, it is false information. According to the paragraph 2, sub-paragraph 5 of the Instructions for Conducting of Environmental Impact Assessment of June 28, 2007, environmental impact assessment is carried out on the basis of the following principles:

»1) obligation – Environmental Impact Assessment (EIA) is obligatory for any types of economic or other activity which can have a direct or indirect impact on the environment and public health.

… 3) alternativeness – the impact assessment is based on mandatory consideration of alternative design solutions, including the design solutions option, including the option of rejecting the planned activity («zero» option).»

The term «zero» option of construction was introduced and emerged due to the current norm of the aforementioned Instruction approved by an order of the Minister of Environmental Protection, and not due to appeals and speeches of representatives of the GS »Green Salvation».

We consider the action of the Department which provided the false information to be an illegal action violating the rights of the Ecological Society provided for by the subparagraph 7 of paragraph 1 of Article 14 of the Environmental Code, namely: the right «to receive timely, complete and reliable information from state bodies and organizations.»

The lawsuit in the interests of the Ecological Society and an indefined number of individuals was filed on December 10, 2018 to the SIEC.

MSE «Department of tourism and external relations of the city of Almaty» is brought to court as a defendant.

Legal violations:

The right of the public to access environmental information has been violated, in particular, the norms:

— paragraph 2, Article 20 of the Constitution of the Republic of Kazakhstan;

— Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters;

— sub-paragraph 7 of paragraph 1 of Article 13, sub-paragraph 7 of paragraph 1 of Article 14, and paragraph 1 of Article 163 of the Environmental Code;

— paragraph 4 of Article 6, Article 18 of the Law «On Access to Information»;

Demands:

To recognize the provision of false information by the Department of tourism and external relations of the city of Almaty as an illegal act.
To oblige the Department to provide the Ecological Society with reliable environmental information.
To issue a private court ruling in relation to the head of the Department, in accordance with Article 270 of the Civil Procedural Code.

On January 4, 2019, the case trial began.

On February 4, the judge of the SIEC of the city of Almaty satisfied the appeal of the GS. The decision stated: «The court is convinced that the information presented in paragraph 5) of the Department’s reply of November 26, 2018, that the term «zero» construction option was introduced into use and appeared as a result of appeals and speeches of representatives of the GS »Green Salvation», is not true.»

The judge ordered the Department to provide the GS with accurate environmental information.

The court decision entered into force on March 12, 2019.

The case is closed. Enforcement proceedings continue (see Section No. 2. Implementation of court decisions, case No. 02).

* * *

No. 4

Case about acknowledging the issuance of the sanitary and epidemiological conclusion to «U …» LLP by the Department to be an illegal action and on obliging it to eliminate the violations

Case background facts:

The Department of Public Health of the city of Almaty issued a sanitary and epidemiological conclusion to »U…» LLP (Limited Liability Partnership) that does not comply with the norms of the Code of the Republic of Kazakhstan «On the Health of the People and the Health Care System», the law «On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan» and the requirements of the Sanitary Rules («Sanitary and epidemiological requirements for identifying a sanitary protection zone of production facilities»).

As a result of the above mentioned actions of the Department, local residents suffer from the activity of the enterprise, which produces concrete, receives, stores, and sells cement.

The lawsuit in defense of the interests of residents of Bokeykhanov Street of the city of Almaty, the Ecological Society and an undefined number of people was submitted on January 17, 2019 to the SIEC.

The Department of Public Health of the city of Almaty was brought to court as a defendant.

Legal violations:

The right of the public to access environmental information and participate in the decision-making process has been violated, in particular:

— paragraph 2 of Article 20 of the Constitution of the Republic of Kazakhstan;

— Articles 4 and 6 of the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters;

— subparagraph 7 of paragraph 1 of Article 13, subparagraph 7 of paragraph 1 of Article 14, and paragraph 1 of Article 163 of the Environmental Code;

— paragraph 4 of Article 6, Article 18 of the Law on Access to Information;

— paragraph 18 of the regulatory decision of the Supreme Court of November 25, 2016 No. 8 »On certain questions of courts’ application of environmental legislation of the Republic of Kazakhstan in civil cases.»

Demands:

To acknowledge the action of the Department which has issued «U…» LLP a sanitary and epidemiological conclusion that does not comply with the laws of the Republic of Kazakhstan, to be an illegal action.
To oblige the Department to fully eliminate the violations.
To issue a private determination in relation to the Head of the Department, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.

In February-March, several court hearings were held.

On March 4, the judge of the SIEC of the city of Almaty refused to satisfy the lawsuit.

The judge arbitrarily interpreted the requirements of the Sanitary Rules. As a result, he came to the conclusion that the hazard class is established depending on the actual concentration of pollutants outside the industrial site, and not according to the officially approved Sanitary Classification of Industrial Facilities. That is, the Department can arbitrarily change the hazard class and, on this basis, actually eliminate the sanitary protection zone for construction industry facilities.

On April 8, the GS filed a complaint with the Appeals Board of the Almaty City Court.

On June 5, the panel rejected the complaint.

The judges justified the refusal by stating that the class of sanitary hazard could be allegedly established by calculation, depending on the actual concentration of pollutants outside the industrial site, and not according to the officially approved Sanitary Classification of industrial facilities. This means that supposedly the Department of Public Health can arbitrarily change the class of sanitary hazard. The panel of judges did not take into account the two letters of the Public Health Committee received by the applicants at their request. The responses clearly indicate that the class of sanitary hazard cannot be changed based on calculations. The size of the sanitary protection zone can be changed.

On November 11, the GS filed a motion with the Supreme Court.

On December 9, a judge of the Supreme Court, having examined the application in advance, refused to refer it to the cassation instance of the Supreme Court. The judge reiterated the arguments of the courts of the first and appeal instances.

The judge did not take into account the two letters of the Public Health Committee received by the applicants at their request. The responses clearly indicate that the class of sanitary hazard cannot be changed based on calculations. The size of the sanitary protection zone can be changed.

The case is closed. Violations are not resolved.

* * *

No. 5

Case on acknowledging the provision of incomplete and inaccurate information by the Committee to be an unlawful act and on obliging it to provide complete and accurate environmental information

Case background facts:

Due to the provision of inaccurate information and an arbitrary interpretation of the legislation by the Department of Public Health of the city of Almaty, the GS requested clarification from the Public Health Committee. The questions posed to the Committee were related to the procedure for determining and changing the hazard class of industrial facilities.

The Committee ignored four out of the five questions asked, and gave an unargumented, inaccurate answer to the fifth question.

The lawsuit in defense of the interests of the Ecological Society and an undefined number of people was submitted to the SIEC of the city of Nur-Sultan on April 25, 2019.

The Committee for Public Health Protection of the Ministry of Health of the Republic of Kazakhstan was brought to court as a defendant.

Legal violations:

The right of the public to access environmental information has been violated, in particular:

— paragraph 2 of Article 20 of the Constitution of the Republic of Kazakhstan;

— Article 4 of the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters;

— subparagraph 7 of paragraph 1 of Article 13, subparagraph 7 of paragraph 1 of Article 14 and paragraph 1 of Article 163 of the Environmental Code;

— paragraph 4 of Article 6, Article 18 of the Law on Access to Information;

Demands:

To acknowledge the fact that the Committee for Public Health Protection did not provide an answer to four questions and provided false information to the one question to be an unlawful action.
To oblige the Committee to provide the Ecological Society with complete and accurate environmental information.
To make a private determination in relation to the Head of the Committee, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.

The lawsuit was withdrawn due to receipt of the complete and accurate information.

* * *

No. 6

Case about provision of inaccurate information by the akimat of the Medeu District of Almaty and about obliging it to provide complete and accurate environmental information

Case background facts:

Akimat provided the Ecological Society with false information that the Government Decree No. 1267 of December 2, 2014 on the transfer of the natural tract Kok-Zhailau to the Medeu District from the Ile-Alatau State National Park has expired, according to the Government Decree No. 745 of September 4, 2015 «On recognition of certain decisions of the Government of the Republic of Kazakhstan as ceased to be active.»

The Decree No. 745 only invalidated the paragraph 3 of the Decree No. 1267. The Kok-Zhailau tract is still located in the administrative borders of the Medeu district.

The lawsuit in defense of the interests of the Ecological Society was submitted to the SIEC of Almaty on July 24, 2019.

Legal violations:

The right of the public to access environmental information has been violated, in particular:

— paragraph 2 of Article 20 of the Constitution of the Republic of Kazakhstan;

— Article 4 of the Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters;

— subparagraph 7 of paragraph 1 of Article 14 and paragraph 1 of Article 163 of the Environmental Code;

— paragraph 4 of Article 6, Article 18 of the Law on Access to Information;

Demands:

To acknowledge the provision of inaccurate information by the Akimat of Medeu District to be an unlawful act.
To oblige the Akimat to provide the Ecological Society with accurate environmental information.
To make a private determination in relation to the Head of the Akimat, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.

On September 12, a judge of the Specialized Inter-district Economic Court found that «the act of providing inaccurate information to the Ecological Society «Green Salvation» by the Akimat of the Medeu District of Almaty was unlawful.»

The decision of the SIEC of the city of Almaty dated September 12, 2019 entered into force on October 13, 2019.

The case is closed. Enforcement proceedings continue (see Section No. 2. Implementation of court decisions, case No. 04).

* * *

No. 7

Case on violation of the requirements of the law by the Committee of Quality and Safety of Goods and Services when developing new rules for designing sanitary protection zones of industrial enterprises

Case background facts:

The Committee for Public Health Protection of the Ministry of Health of the Republic of Kazakhstan (presently — the Committee for Quality and Safety of Goods and Services), in response to the GS’s proposal to introduce a requirement for mandatory on-site marking of sanitary protection zones into the draft Rules «Sanitary and Epidemiological Requirements for Establishing Sanitary Protection Zones of Production Facilities» declared that such introduction would be unnecessary.

The lawsuit in defense of the interests of an undefined number of people was submitted at the Nur-Sultan SIEC on August 9, 2019.

Legal violations:

The right of the public to participate in preparation of regulatory provisions of direct executive force and other generally applicable legally binding rules by government bodies has been violated.

Demands:

To acknowledge the actions of the Public Health Committee to be unlawful.
To oblige the Committee to fully eliminate the violations.
To make a private determination in relation to the Head of the Committee, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.

On September 19, the judge of the SIEC of the city of Nur-Sultan refused to satisfy the lawsuit demands. He made a determination in which he indicated that the appeal of the GS «is not subject to trial in civil proceedings», since «the law does not provide for an appeal against actions of a state institution during development, submission, discussion, and adoption of a legal act». The court did not take into account article 8 of the Aarhus Convention, which reads as follows: «Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment.»

On September 30, a private complaint was filed with the Appeals Board for Civil Cases of the SIEC of the city of Nur-Sultan.

On November 27, the panel rejected the complaint.

The judge repeated the arguments of the courts of the first and appeal instances word for word. «The law does not provide for an appeal against actions of a state institution during development, submission, discussion, and adoption of a legal act » (Quote from the court ruling).

The judge did not take into account article 8 of the Aarhus Convention, which reads as follows: «Each Party shall strive to promote effective public participation at an appropriate stage, and while options are still open, during the preparation by public authorities of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment.»

In the ruling, the judge did not even mention Article 8 of the Aarhus Convention.

A petition is being prepared to be submitted to the Supreme Court.

The trial continues.

* * *

No. 8

Case on inaction of Akimat of Medeu District of Almaty

expressed in the refusal to maintain order and carry out sanitary cleaning in the Kok-Zhailau tract

Case background facts:

The Akimat, refering to the alleged expiration of the Government Decree No. 1267 of December 2, 2014 on the transfer of the tract Kok-Zhailau to the Medeu District from the Ile-Alatau State National Park, has not fulfilled its direct responsibilities in maintaining order and sanitation on the natural tract Kok-Zhailau for several years.

The lawsuit in defense of the interests of an undefined number of people was submitted to the SIEC of Almaty on August 28, 2019.

Legal violations:

The Akimat does not fulfill its direct duties of maintaining order and sanitation provided for by the norms of the law «On Local Government and Self-Government in the Republic of Kazakhstan» dated January 23, 2001, and the requirements of the provision on the municipal state institution «Administration of the Akim of Medeu District of the city of Almaty».

As a result of the Akimat’s inaction, the rights of an undefined number of people, namely residents of Almaty, who, according to paragraph 1 of Part 1 of Article 13 of the Environmental Code, have the right to an environment favorable to their life and health, are violated.

Demands:

To acknowledge the inaction of the Akimat of the Medeu District to be illegal.
To oblige the Akimat to eliminate the committed violations in full.
To make a private determination in relation to the Head of the Akimat, in accordance with Article 270 of the Civil Procedural Code of the Republic of Kazakhstan.

In September October, several court hearings were held.

On October 18, the judge of the SIEC of the city of Almaty refused to satisfy the appeal.

The judge justified the refusal by stating that by the decision of the Akimat of Almaty No. 1 / 1-227 of February 19, 2019, a right of temporary free short-term land use was granted to the State Authority «Department of Tourism and External Relations of the City of Almaty» for a period of 4 years 11 months on the land area of 459.2020 hectares for the construction and operation of the Kokzhailau ski resort, located at: Kokzhailau tract. Therefore: «at the time of the plaintiff’s appeal with a letter dated April 29, 2019, the issue of restricting the entry of vehicles into the territory of the Kok-Zhailau tract and sanitary maintenance was not within the competence of the District Akim Administration.»

This conclusion is incorrect, since the Government Decree dated 12/02/2014 on the transfer of the tract Kok-Zhailau to the Medeu District from Ile-Alatau State National Park, at the time of consideration of this civil case, did not lose force, that is, it was a valid normative legal act. Transfer of land for rent to another institution does not exempt the Akimat from the obligation to improve, provide lighting, plant greenery, and perform sanitary cleaning of the territory of the district.

On November 18, the GS filed a complaint with the Appeals Board of the Almaty City Court.

On January 8, 2020, the Board rejected the complaint.

A petition is being prepared to be submitted to the Supreme Court.

The trial continues.

* * * * * *

SECTION No.2

Implementation of court decisions

In accordance with paragraph 2 of Article 21 of the Civil Procedural Code, court decisions that have entered into legal force are binding on all, without exception, state bodies, local self-government bodies, public associations, other legal entities, officials and citizens and are subject to enforcement throughout the Republic of Kazakhstan.

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).

Background. In connection with the constant emissions of dry cement from the enterprise «U …» LLP, local residents with the assistance of the Ecological Society «Green Salvation» applied to the court demanding to provide information about the sanitary protection zones of «U …» LLP and neighboring industrial enterprises, terrains, special signs indicating the boundaries of sanitary protection zones.

In 2013, the Supreme Court adopted a resolution obliging the Department of Public Health of Almaty (formerly the Department of Sanitary and Epidemiological Control in Almaty) to satisfy the claimants’ demands. Since 2014, local residents, with the assistance of the GS, are seeking to implement the Supreme Court decision.

For more information on the actions taken in 2014 — 2018 to implement the decision of the Supervisory Board of the Supreme Court of November 27, 2013, see «Summary of Judicial Practice of the Ecological Society «Green Salvation for 2018», section 2.

On August 2, 2018, the Appeals Board of the Almaty City Court cancelled the ruling of the Medeu District Court of Almaty on termination of the enforcement proceedings of the case and sent it for a new review to the Medeu District Court of Almaty from the stage of acceptance of the complaint.

On September 18, the Medeu District Court of the city of Almaty declared illegal the action of the bailiff of the Department of Justice on enforcement of non-proprietary requirements when issuing the ruling of April 25, 2018 on termination of the enforcement proceedings.

The court ordered the bailiff to eliminate in full the violations of the rights of claimants and take measures aimed at fulfilling the requirements of the executive document.

On December 6, 2018, enforcement proceedings were resumed.

On February 13, again, the debtor was handed a notice of obligation to execute the judicial act.

On February 14, by a resolution of the SIEC of the city of Almaty, the debtor was held administratively liable under Article 669 of the Administrative Aode and fined 75,750 tenge.

On February 27, the debtor was given a notice again about the obligation to execute the judicial act with a simultaneous warning of collecting a penalty from the debtor for each day of delay in execution provided for by the requirement of Article 104 of the Law «On Enforcement Proceedings and the Status of Bailiffs».

On March 12, in accordance with Article 104 of the aforementioned law, a statement was submitted to the Medeu District Court of Almaty about collection of a penalty from the debtor in the the state’s favor in the amount of 858,500 tenge for each day of delay.

By the decision of the Medeu District Court of April 5, the statement of the bailiff was satisfied in full, 858,500 tenge were collected from the debtor in the state’s favor.

The statement of the bailiff about initiation of criminal proceedings against the head of the Department is under consideration.

On May 27, by a decision of the bailiff, the executive document of the Medeu District Court of Almaty dated December 26, 2016, issued by order of the Supreme Court of the Republic of Kazakhstan No. 2-7091 / 12 of November 27, 2013, was returned by the claimant. The basis is the renaming of the debtor in accordance with the decree of the Government of the Republic of Kazakhstan dated 04/10/2019 No. 177.

On June 5, the applicant filed a complaint with the Medeu District Court of Almaty in accordance with Article 250 of the Civil Procedural Code of the Republic of Kazakhstan regarding the actions of the bailiff.

On June 28, the Medeu District Court of Almaty refused to satisfy the complaint. Currently, an appeal is being prepared against the decision of the district court.

On June 3, the applicant submitted an application with the Medeu District Court of Almaty about replacing the debtor.

On July 9, by a determination of the Medeu District Court of Almaty, the applicants’ claim was satisfied, the debtor was replaced by the Department of Control of Quality and Safety of Goods of the city of Almaty.

In August 2019, the determination of the Medeu District Court of Almaty to replace the debtor entered into legal force. Based on the court ruling, the applicants filed an application to the bailiff for resumption of enforcement proceedings. The bailiff refused to resume the enforcement proceedings twice, referring to the fact that the writ was returned to the applicants. The applicants had to turn to the Medeu District Court of Almaty with a request to write out and hand out a writ of execution on the court ruling of July 9, 2019.

Having received a writ of execution, the applicants appealed to the bailiff with a request to institute enforcement proceedings.

Enforcement proceedings were instituted. The debtor is the Department of Control of Quality and Safety of Goods of the city of Almaty.

Regarding the systematic failure to comply with the decision of the Supreme Court, the applicants repeatedly appealed to the Ministry of Justice of the Republic of Kazakhstan. The applicants received answers to their appeals from the Department of Justice of Almaty, signed by the head and deputy head of the Department.

Enforcement proceedings are currently at the enforcement stage.

Enforcement proceedings continue.

* * *

No. 2

(see Section 1, Case No. 3, 2019).

On March 12, 2019, the SIEC of Almaty issued a writ of execution.

The writ of execution of the SIEC of Almaty was accepted into proceedings by the Territorial Department for enforcement of non-property related claims of the Department of Justice of Almaty. For this enforcement proceeding, the debtor is required to provide the Ecological Society with accurate information regarding the «zero option».

Until June 30, no accurate information was provided by the debtor. The motive for the non-execution of the writ is that the debtor allegedly provided information on March 13, 2019. The Ecological Society cannot accept the debtor’s reply of March 13 as accurate information due to the fact that the letter of the Department does not refer to the decision of the SIEC of Almaty.

Within nine months, the writ of execution, in which the Department is indicated as the debtor, has not been fully executed. The Department refers to the response provided on March 13, 2019. But in the indicated response, there is no indication of the decision of the SIEC of Almaty dated February 4, 2019.

On December 23, the Ecological Society sent a new letter to the Department with a proposal to immediately execute the court decision. Otherwise, the GS will be forced to go to court.

Enforcement proceedings continue.

* * *

No. 3

Case about acknowledging of inaccurate information provision by the MSE «Department for Control of Use and Protection of Lands of the city of Almaty» to be an illegal action, and about obliging it to provide complete and accurate environmental information (See Section 1, case No. 1, 2019)

On September 30, because of the defendant’s refusal to voluntarily comply with the decision of the judicial board for civil cases of the Almaty City Court of September 10, 2019, a statement was sent to District Court No. 2 of the Almaty District of Almaty in order to submit it to the Office for Claims Execution of the Department of Justice of the city of Almaty.

On October 15, 2019, the District Court No. 2 of the Almaly district of Almaty issued a writ of execution.

The writ of execution was accepted into proceedings by the Territorial Department for execution of non-property related claims of the Department of Justice of Almaty. With respect to this enforcement proceedings, the debtor is obliged to provide the Ecological Society with accurate information in the interests of citizen K… and other residents of Velikolukskaya Street regarding the intended use of the neighboring site on which the production workshop is located.

On December 31, 2019, a response was received from the Department of Urban Planning Control of the city of Almaty, in which the defendant again provided inaccurate information, completely ignoring the decision of the judicial board of September 10, 2019.

Enforcement proceedings continue.

* * *

No. 4

Case about provision of inaccurate information by the akimat of the Medeu District of Almaty and about obliging it to provide complete and accurate environmental information

(see Section 1, Case No. 6, 2019).

On December 24, due to the defendant’s refusal to voluntarily execute the court decision of September 12 within three months, a statement was sent to the SIEC of Almaty to issue a writ of execution for submission to the Department for execution of non-property related claims of the Department of Justice of Almaty.

On January 8, 2020, the court issued a writ of execution to the GS.

Enforcement proceedings continue.

* * *

Rights and legal interests of the Ecological Society «Green Salvation» are defended in court by lawyer Svetlana Philippovna Katorcha and an attorney of the Almaty City Board of Attorneys Omarbekova Alma Zhanatovna.

Translated by Sofya Tairova

* * *

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Human Rights, News

Violation of human rights to a healthy and favourable for wellbeing environment in Kazakhstan

16.01.2020 admin

Human Rights Day is celebrated annually on December 10 since 1950, at the proposal of the UN General Assembly. On this day in 1948, the UN General Assembly adopted the Universal Declaration of Human Rights.

Hundreds of residents of Almaty and other regions of Kazakhstan whose environmental rights have been violated are contacting our organization. We try to help them solve their problems.

Based on our work experience, we prepared the material that gives an idea of the situation with environmental human rights in the country.

What determines the environmental situation in Kazakhstan

The country still lacks environmental and forest policy,[1] policy for biodiversity conservation and protected areas development.[2] There is no national air protection strategy, no specific air quality programs.[3]

Economic policy remains geared towards exploiting rich natural resources. Like the economies of a number of post-Soviet countries, it “depends heavily on fuel exports. So, in 2017 in Azerbaijan, the share of fuel in the total value of exported goods was 90 percent, in Kazakhstan — 63 percent, in Russia — 59 percent, in Turkmenistan — 57 percent.”[4]

Despite the fact that GDP grew from $115.3 billion in 2009 to $162.9 billion in 2017, “current expenditures and investments for environmental protection as a percentage of GDP decreased from 1.03% in 2009 to 0.42% in 2016.”[5]

Environmental human rights recognized in Kazakhstan

The main law, which provides for environmental human rights, is the Environmental Code, adopted in 2007 (hereinafter — the EC).

Article 13 of the Environmental Code recognizes the following rights of individuals:

— right on favourable for their life and health environment; creation of public associations and foundations; to participate in the process of decision-making by state bodies; access to timely, complete and reliable environmental information from government bodies and organizations; to discuss draft regulatory legal acts;

— right to appeal to court for restriction and termination of economic and other activities of individuals and legal entities that have a negative impact on the environment and human health;

— right to appeal to court for compensation for harm caused to health and property.

According to Article 14, public associations have similar rights and in addition:

— right to develop and promote environmental programs, protect the rights and interests of citizens, involve them on a voluntary basis in activist work;

— right to apply to court in defence of the rights, freedoms and legitimate interests of individuals and legal entities, including in the interests of an indefinite number of persons.

Deficiencies in legislation

Constitution

According to Article 31 of the 1995 Constitution: “1. The state aims to protect the environment favourable to human life and health.”

According to Article 38: “Citizens of the Republic of Kazakhstan are responsible for preserving the nature and taking care of natural resources.”

In other words, no rights — but there are duties! This looks strange, since subparagraph 1, paragraph 1 of Article 13 of the Environmental Code stipulates that individuals have the right to an environment favourable to their life and health.

Environmental Code (EC)

Not a single law, including the EC, states that environmental rights are fundamental rights, that is, the rights that “every person has.”

The human rights to water and sanitation are also not recognized.[6] This problem is of particular importance in Kazakhstan.[7]

The EC should recognize the human right to respect for the home in the interpretation developed by the European Court of Human Rights back in 2006: “Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person’s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference.”[8]

The EC does not prescribe a mechanism for public participation in the decision-making process. The Aarhus Convention Implementation Guide states 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.”[9]

Civil Procedure Code (hereinafter — the CPC)

The Civil Procedure Code still preserves a three-month statute of limitations for appealing to the court regarding environmental violations. This rule also applies to violations that have not been stopped and are of a continuous nature. We believe that the time limit for applying to the court for environmental violations should be significantly increased, so that it is possible to file appeals until the violations are eliminated.

The norm on preliminary hearing of appeals in the Supreme Court is still in place (Article 433). This introduces a great deal of subjectivity into the process of case hearings, since a case is considered not by a panel of judges, but by one judge.

Decisions of bodies of international conventions are not considered to be a basis for reviewing court decisions, rulings and determinations on newly discovered and new circumstances (Article 455).

It should be noted that some norms of national legislation do not comply with the requirements of international conventions.

According to international experts, firstly, the country does not have a “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 of the Espoo Convention.” Secondly, state bodies delegate responsibility “for conducting the EIA [Environmental impact assessment] from the public authorities to the developer (initiator) of the proposed activity (Article 6, paragraphs 2, 6, 9 and 10 of the Aarhus Convention refer explicitly to public authorities).”[10]

We fully support the idea set forth in the “National Action Plan for Human Rights in the Republic of Kazakhstan for 2015-2020”: “The Republic of Kazakhstan needs to join the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) to provide citizens of Kazakhstan with access to European Court of Human Rights.”[11]

In Kazakhstan, there is no environmental ombudsman.[12]

Situation with human rights

Violation of human rights is widespread. “In most cases, government agencies not only do not take action, but openly protect offenders of the law.”[13]

Most common violations

Often, public authorities do not provide the public with “access to all information related to the decision-making process” or misinform the public.

Public hearings in most cases are held formally or not at all.

When considering cases, with rare exceptions, courts do not take into account and, accordingly, do not apply or incorrectly apply the norms of international environmental conventions.

Courts allow arbitrary interpretation and application of laws.

Executive authorities intervene in the activity of the judiciary.

Court decisions made in favour of the public are not implemented for years[14], the judicial enforcement system is highly corrupt. In 2001, the Constitutional Council drew attention to this problem: “Based on citizens’ letters coming to the Constitutional Council, the issue of enforcement of court decisions is topical. About half of decisions of civil courts are “hanging,” not being enforced, which leads to a violation of the constitutional human right to judicial protection, negatively impacts the image of the courts.”[15]

Conclusions.

The main causes of massive violations of human rights to a healthy and favourable environment are:

— lack of state environmental policy;

— economic policy aimed at predatory exploitation of natural resources;

— unsatisfactory legislation and its poor compliance;

— limited access to environmental information;

— removal of the public from effective participation in the decision-making process;

— interference of the executive branch in the activity of the judiciary;[16]

— collapse of the state system of nature conservation;[17]

— flourishing corruption;

— non-compliance with the requirements of international conventions.

The results of the human rights violations are: discrimination of many groups of the population at the place of residence and social status; deterioration of the quality of life; increase of poverty; increase in morbidity and mortality;[18] increased social tension; growing distrust of government bodies.

Ecological Society “Green Salvation.”

December 10, 2019.

[1] “The Forest Code was approved in 2003, and has been updated, most recently in 2017. However, there is not yet a national strategic document for the sector for long and medium-term perspective.” State of Forests of the Caucasus and Central Asia. – New York and Geneva, 2019, p. 89: http://www.unece.org/fileadmin/DAM/timber/publications/sp-47-soccaf-en.pdf.

[2] The concept for transition of the Republic of Kazakhstan to “green economy,” approved by Decree of the President of the Republic of Kazakhstan dated May 30, 2013 No. 577, affects only some aspects of environmental policy, focusing on transformations in the economy.

[3] “In the absence of other strategic documents on environmental protection, the Concept on Transition to Green Economy has become a “rescue boat” for the environmental sector. However, the Concept does not cover many environmental issues (e.g. environmental regulation, biodiversity, ecosystems, and forests). It was not meant to and cannot replace a framework policy document on environmental protection. Furthermore, no separate governmental funding is allocated for implementation of the Concept and its Action Plan.”

Environmental Performance Reviews. Kazakhstan. Third Review. – Geneva, United Nations Economic Commission for Europe, – 2019, p. 40: http://www.unece.org/fileadmin/DAM/env/epr/epr_studies/ECE_CEP_185_Eng.pdf.

[4] UNCTAD: as the climate change progresses, “commodity-dependent”’ countries need to diversify their economies: https://news.un.org/ru/story/2019/09/1362722, (website visited on October 1, 2019).

[5] Environmental Performance Reviews. Kazakhstan, p. 3, p. 106.

[6] The human right to water and sanitation. Resolution adopted by the General Assembly on 28 July 2010: https://undocs.org/ru/A/RES/64/292.

[7] “The problem of water supply is also acute in our country. We do not have enough quality drinking water. A number of regions are in dire need of it. … Presently, we are already faced with a serious issue of usage of water resources of transboundary rivers.”

Message from the President of the Republic of Kazakhstan N. Nazarbayev to the people of Kazakhstan. December 14, 2012: https://www.akorda.kz/ru/addresses/addresses_of_president/poslanie-prezidenta-respubliki-kazahstan-nnazarbaeva-narodu-kazahstana-14-dekabrya-2012-g?q=%D0%92%D0%BE%D0%B4%D0%BD%D1%8B%D0%B5%20%D1%80%D0%B5%D1%81%D1%83%D1%80%D1%81%D1%8B.

[8] Aarhus Convention. An implementation guide. Second edition. UN, 2014, p. 29.

[9] Aarhus Convention. An implementation guide. Second edition. UN, 2014, p. 32.

[10] Environmental Performance Reviews. Kazakhstan, p. 49.

[11] National Human Rights Action Plan in the Republic of Kazakhstan for 2015-2020. Draft. –Almaty, 2015, p. 356: https://bureau.kz/monitoring_2/nacionalnyi_plan_deistvii_rk_po_pravam_cheloveka/nacionalnyi_plan_deistvii_v_oblasti_prav_cheloveka_v_respublike_kazakhstan/.

[12] “There has been an ombudsperson for human rights in Kazakhstan since 2002 but the office has a limited role in protection of citizens’ environmental rights. In 2017, only one of a total of 1,474 complaints received by the ombudsperson for human rights referred to the right to a healthy environment (in 2016, none of the 1,785 complaints did so).”

Environmental Performance Reviews. Kazakhstan, p. 154.

[13] National Human Rights Action Plan in the Republic of Kazakhstan for 2015-2020. Draft. – Almaty, 2015, p. 351: https://bureau.kz/monitoring_2/nacionalnyi_plan_deistvii_rk_po_pravam_cheloveka/nacionalnyi_plan_deistvii_v_oblasti_prav_cheloveka_v_respublike_kazakhstan/.

[14] Effective judicial mechanisms of the Aarhus Convention include a notion which, in particular, “requires that the judgements of the judicial authorities should be ultimately enforceable in society.”

Aarhus Convention. An implementation guide. Second edition. UN, 2014, p. 35.

[15] Message of the Constitutional Council of the Republic of Kazakhstan dated March 24, 2001 “On the state of constitutional legality in the republic:” http://ksrk.gov.kz/index.php/solutions/poslanie-parlamentu-respubliki-kazakhstan-o-sostoyanii-konstitucionnoy-zakonnosti-v-0.

[16] “The Human Rights Committee is concerned about the lack of measures to ensure the independence of the judiciary, both in law and in practice. It recommended that Kazakhstan eliminate all forms of unlawful interference of the executive branch in the activities of the judiciary and effectively investigate allegations of such interference, as well as intensify efforts to combat corruption in the judicial system.”

A selection of information on Kazakhstan. Item 21.

[17] “The effectiveness of authorized state bodies in the field of environmental protection and nature management is extremely low. The powers of the Parliament in addressing environmental issues and in the management of state-owned natural resources have been greatly reduced. State bodies have practically eliminated themselves from solving environmental problems. This is the result of excessive decentralization of management, the irrational distribution of powers between the authorized bodies and local executive authorities, numerous reorganizations of the authorized bodies, the lack of effective control mechanisms, and flourishing corruption.”

National Human Rights Action Plan in the Republic of Kazakhstan, pp. 354-355.

The state nature conservation apparatus has decomposed to such an extent that it is no longer able to really protect human rights, including the right on healthy environment, and preserve ecological systems.

[18] “In 2013, the World Bank estimated the annual number of premature deaths due to air pollution in Kazakhstan to be 2,800 (caused by particulate matter in ambient air and household air pollution).”

Environmental Performance Reviews. Kazakhstan, p. 163.

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Human Rights, News

DANGEROUS WORK

18.09.2017 admin

This report is devoted to environmentalists who have been or continue to be persecuted in the countries of the former Soviet Union and in the U.S. for their work to protect everyone’s right to a healthy environment. This report was prepared by «Crude Accountability» and «Ecoforum of NGOs Kazakhstan».

http://env.kz/2017/09/06/doklad-o-presledovaniyah-ekologicheskih-aktivistov/

OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Appeal Regarding the Emergency Situation in the Village of Berezovka

03.12.2014 admin

On November 28, 2014, 19 children and three adults fainted in the Berezovka village school in Burlin district of Western Kazakhstan Oblast, and were taken to the Burlin district hospital. On November 29th, six children were transferred to the regional clinical hospital.

* * *

Appeal Regarding the Emergency Situation in the Village of Berezovka to:

The President of the Republic of Kazakhstan

Commissioner for Human Rights under the President of the Republic of Kazakhstan

Commission for Human Rights under the President of the Republic of Kazakhstan

Committee for Agriculture, Natural Resource Use and Development of Agricultural Territory of the Senate of the Parliament of the Republic of Kazakhstan

Committee on Environment and Natural Resource Use of the Majilis of the Parliament of the Republic of Kazakhstan

The Government of the Republic of Kazakhstan

The Akimat of Western Kazakhstan Oblast

Karachaganak Petroleum Operating, B.V.

The Department for Emergency Situations of Western Kazakhstan Oblast

Department of Health Protection of Western Kazakhstan Oblast

Department of Natural Resources and Natural Resource Use of Western Kazakhstan Oblast

Department of Consumer Protection of Western Kazakhstan Oblast

Department of Education of Western Kazakhstan Oblast

December 2, 2014

On November 29th during a public meeting with the residents of the village, the deputy head of the regional health department, M. Aimurzieva, stated, “Preliminary results indicated that an unknown toxic substance impacted the central nervous system [of the hospitalized villagers].”

The village of Berezovka is located not far from the Karachaganak oil and gas condensate field of the international consortium, Karachaganak Petroleum Operating, B.V. (KPO), which is one of the most dangerous industrial enterprises in Kazakhstan. KPO’s sanitary protection zone crosses the northern edge of the village. The situation with the borderline and the village has been the formal basis for refusal to relocate the villagers to a safe location. Numerous factual documents demonstrate that the placement of the minimal five-kilometer sanitary protection zone is not enough to ensure the environmental safety of the residents.

Since 2002, the residents of Berezovka, on their own and with the help of human rights organizations, have repeatedly appealed to the responsible government bodies and to the Karachaganak Petroleum Operating, B.V. consortium with requests to relocate the village from this dangerous area. Their appeals have had no effect, regardless of the fact that more and more data have appeared about the growing threats to the health and lives of the residents. In 2010 the villagers appealed to the courts; the court determined that the sanitary protection zone had been illegally reduced. The residents of Berezovka appealed to state bodies numerous times about accidental emissions into the atmosphere, which negatively impacted the residents, and about illnesses among children. In 2011 the residents began to worry about the appearance of sinkholes in the village and surrounding areas.

We believe that the emergency, which took place in the village of Berezovka on November 28, 2014, is not a surprise. It is the logical result of unscrupulous fulfillment of responsibilities by state bodies and the result of violations of environmental and industrial safety standards by the consortium, Karachaganak Petroleum Operating, B.V. This led to further violations of the human right to a clean and healthy environment, which is enshrined in the Constitution of the Republic of Kazakhstan, the environmental code and in international agreements ratified by the country. Furthermore, the residents of the village are exposed to discrimination on the basis of where they live, and their social status and wealth.

Based on the above statements, we fully support the demands of the residents of the village to be relocated to safe location.

We demand:
— the provision of complete, accurate information about all types of work carried out by KPO in the sanitary protection zone, and data on industrial monitoring for the past two years;
— the provision of complete, accurate medical information on the reasons for the poisoning of the residents of the village;
— the provision of independent research into the reasons for the poisoning with the involvement of all responsible bodies and the prosecutor’s office;
— full, transparent research and provision of all results to the residents of the village, the public, and the media.

We demand an end to the human rights violations and discrimination against the residents of the village of Berezovka.

We demand the rapid relocation of the residents of Berezovka.

We request that you send your responses to:

1. Sergey Kuratov, Chairman, Ecological Society Green Salvation, 050000, Republic of Kazakhstan, Almaty, Ul. Shagabutdinova, 58, Apt. 28

2. Kate Watters, Executive Director, Crude Accountability, P.O. Box 2345, Alexandria, VA 22301, USA;

3. Svetlana Anosova, Chairwoman, Zhasil Dala, Republic of Kazakhstan, Western Kazakhstan Region, Burlin District, Berezovka, Ul. Dostyk 7

4. Lukpan Akhmediarov, Editor, Uralsk Weekly, 090000, Republic of Kazakhsatn, Western Kazakhstan Region, Uralsk, Ul. Kerderi 138.

5. Roza Akylbekova, Director, Kazakhstan International Bureau for Human Rights and the Rule of Law, 050035, Republic of Kazakhstan, Almaty, Microregion 8, d.4-a, office 423

6. Elvira Batlina, Working Group of NGOs of Kazakhstan, For the Defense of the Rights of Children”

Details: AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Sinkholes Appear in and Around the Village of Berezovka Near the Karachaganak Field in Kazakhstan

19.01.2011 admin

Sinkholes are appearing in and around the village of Berezovka as the ground gives way near the territory of the Karachaganak Oil and Gas Condensate Field in western Kazakhstan. Local residents are concerned that this is could be related to the expanded exploration and drilling of oil and gas condensate at the Karachaganak Field.

After a sinkhole appeared in the village in December 2010, and three others were found in close proximity to Berezovka, at the request of the local villager in whose home the sinkhole occurred, the local environmental organization, Zhasil Dala (Green Steppe), filed a formal complaint with the prosecutors’ offices on the local, regional and national levels.

“It has been a month since the sinkhole appeared, and nothing has been done,” said Nagaisha Demesheva. “I am constantly terrified, and I am afraid for those of us living in the house. I’m also worried about what can happen now since it is winter and parts of my house could just fall into the street.”

“The failure to conduct the required investigation into the cause of the sinkhole under Demesheva’s home and the inaction of government bodies create a dangerous threat to her family. This is a violation of her rights, which are guaranteed by the Constitution and laws of the Republic of Kazakhstan,” stated Zhasil Dala in its formal statement to the prosecutor. “It is a well-established fact that the formation of sinkholes happens during the development of oil and gas fields.”

Several months ago, two sinkholes appeared approximately 1.5 kilometers south of Berezovka. They are 2.5 meters by 1.5 meters wide; one sinkhole is about 4 meters deep, the other is approximately 5 meters deep. The internal diameter of the sinkholes is around 5 to 6 meters, according to Sergey Solyanik of Crude Accountability, who witnessed the caved-in areas himself.

A third sinkhole was recently found inside the Sanitary Protection Zone of the Karachaganak field not far from the village of Zhanatalap. The diameter of this sinkhole is 10 to 12 meters, with a depth of 8 to 9 meters. In this same location are two older sinkholes, which were found by local hunters two years ago. KPO has erected special signs in the area warning local residents that it is dangerous.

“The appearance of the sinkholes in and near the village demands immediate investigation into why they are occurring. It is possible that this is connected with the development at Karachaganak,” said Sergey Solyanik. “The residents of Berezovka are concerned because now, along with the gas emissions from the field, there is a new threat. This demonstrates again the danger to people living close to Karachaganak and the need to relocate the residents of Berezovka as quickly as possible.”

The villagers have been fighting for relocation for the past 8 years, as it is illegal, according to Kazakhstani law, for anyone to live inside the Sanitary Protection Zone.

Waste water is reinjected into the ground at the Karachaganak field, a common practice at oil and gas fields. Researchers have been investigating the potential connection between reinjection and the appearance of sinkholes. One of the most recent and well-known instances of sinkholes damaging communities occurred in 2008 in Daisetta, Texas, when a 600 foot sinkhole emerged in an area where salt domes were used to inject salty waste water from oil and gas operations. (Wall Street Journal, May 18, 2008)

According to the appeal from Zhasil Dala, rumors have begun to circulate among the residents of Berezovka that the village itself will soon fall into a sinkhole.

To read Zhasil Dala’s appeal and to learn more about the village of Berezovka’s campaign for relocation, please visit www.crudeaccountability.org.
January 19, 2011

Contact:
Kate Watters: 703-299-0854, kate@crudeaccountability.org
Sergey Solyanik: ss_grs@yahoo.com

ALMATY: A VETERINARY LABORATORY IS BEING BUILT WITH SEVERE VIOLATIONS OF LAW

Almaty: a veterinary laboratory is being built with severe violations of law

17.08.2010 admin

The Ecological Society “Green Salvation” was addressed by a group of citizens living in the city of Almaty on Raiymbek street. The people were concerned that their rights on favorable environment were violated because of construction of a State veterinary laboratory (contractor – “Almatyenergoresurs” LLP) which was taking place on the territory of their private land lots next to their houses.

The construction works started in July 2009. We conducted a relevant inspection and determined the following:

1. According to the standard design, the complex includes a laboratory building, vivarium, and crematorium. The site’s primary purpose is to “diagnose extremely dangerous diseases of animals listed and approved by the Government of the Republic of Kazakhstan”, including the diseases which can be transmitted to humans (anthrax, murrain, brucellosis, rabies, and others). The research is to be performed for the whole Almaty oblast (region) and the city of Almaty. The crematorium is to burn the corpses and tissues of dead animals. Existing standards require such enterprises to have a sanitary protection zone (Sanitary Rules and Norms 8.01.001.04), at a minimum, of 50 meters from the constructed site.

2. The laboratory site construction works are conducted in an immediate proximity of the residential houses, at a distance of 5 meters. This fact was documented.

3. The project of the construction is not agreed with the local residents. There is no any evidence of accounting the public opinion or conducting of public hearings, in compliance with the requirements of the legislation on architectural and construction activities.

4. There are no documents proving that the public opinion was accounted, nor that the public had an opportunity to participate in the decision-making process related to the site development, which violates the Environmental Code of the Republic of Kazakhstan.

5. There is no conclusion of the state environmental assessment on the project of the veterinary laboratory construction, which is also a violation of the Environmental Code.

6. In violation of the indicated legislation, the initiator of the construction works did not even inform the people whose interests were directly affected by the intended activity, did not involve the public into discussion about the planned activity, did not consider the public opinion, which is a violation of the principle of publicity of the environmental assessment.

7. The project of construction of the veterinary laboratory is not approved by the official authorities, which violates the Law «On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan»

8. The development works are conducted with severe violations of the construction, sanitary, and environmental norms. The Department of the State Architectural and Civil Engineering Control does not supervise the construction.

9. Lack of the required sanitary and protection zone already causes a significant damage to the property of the local residents. Access to the people’s houses is blocked which makes it impossible for them to use their cars. In order to get home, the people have to pass the construction site. At the present time, the site is being developed by heavy vehicles, which is associated with a constant noise, spreading dirt, and dust dispersing over the yards of the claimants and over the neighboring streets.

10. All these violations are excused by a necessity to undertake measures for organizing a system of sanitary and epidemiological well-being of the population, veterinary medicine and plants quarantine, in compliance with the agreement signed with the World Trade Organization about application of the sanitary and phyto-sanitary measures.

11. There are two ways of solving the issue:
— strategic solution: relocate the dangerous site outside of the city limits;
— tactic solution: move the 5 families out of the sanitary and protection zone of the dangerous site.

August 17, 2010.

Translated by Tairova Sofya.

Human Rights, OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

The People have Taken a Partial Step towards Victory

02.02.2010 admin

Alla Zlobina

Republic, 2/2/2010

The first ever lawsuit filed by NGOs against the Government of Kazakhstan has received a continuance. The Review Board of the Supreme Court satisfied the complaint filed by the public association “Zhasil Dala” and the Ecological Society “Green Salvation” with its decision to continue to review the case regarding relocating the residents of the village of Berezovka.

The Ecological Society “Green Salvation” and the residents of the village of Berezovka (Burlinsky Raion, Western Kazakhstan Oblast) filed the lawsuit against the Government of Kazakhstan in early 2009. They have accused the federal government of “failing to undertake measures to protect and defend the rights and freedoms of citizens and to ensure the safety of the residents of the village of Berezovka who have been forced to live in a zone that is dangerous to their health, and in violation of their rights to a healthy environment” (Author’s Note: the village is located next to the Karachaganak Field).

The story behind the lawsuit has been ongoing since 2004. As a result of the reduction of the Karachaganak Field’s Sanitary Protection Zone (SPZ) from 5 to 3 kilometers, the village of Berezovka, which is located on the zone’s border, was rendered well outside of its boundaries. As such, the village residents were effectively excluded from the opportunity to raise the question of relocating their village to a safe zone.

In 2006, following numerous complaints by Berezovka’s residents and statements to the media, the Republic of Kazakhstan’s Senior Sanitary Doctor, Anatoly Belonog, acknowledged as illegal the reduction of the Sanitary Protection Zone. Karachaganak Petroleum Operating B.V. should have defined and presented for approval the new borders of the SPZ within the course of one year. However, no such reaction followed on the part of the consortium of foreign companies, and, subsequently, the Ecological Society “Green Salvation” filed the lawsuit on behalf of the residents.

In the course of the past year, the lawsuit has been reviewed in the Western Kazakhstan Oblast Court and the City of Astana’s Interdistrict Economic Court. The case was declared outside the jurisdiction of the court; nevertheless the Interdistrict Economic Court of Astana partially satisfied the legal demands of the villagers by acknowledging as illegal the decision to reduce the Karachaganak Field’s SPZ from 5 to 3 kilometers. However, the residents have fought for relocation of the village because their proximity to the field has already impacted the health of children and adults.

Environmentalists had already lost hope for success in this case when Svetlana Anosova, leader of “Zhasil Dala”, received the decision from the Supreme Court’s Review Board. The villagers’ case will be directed “for a new review by the same court, but under a different judge”.

Svetlana Anosova is convinced that if considered in detail and fairly, then it is possible the determination will be that her native village, where 1500 people live, is located in a zone that is dangerous to life.

“We are now concerned with this issue: If there is a definite size—a five kilometer zone—then there should be a definite reference point,” she concluded. “As far as we understand, the reference point should be determined from the external border of the field equipment, that is, from the last well or other industrial object.”

One month ago, Svetlana Anosova sent an inquiry to KPO, requesting that this reference point be made public, arguing that, as the Karachaganak project is under development and new objects are being constructed, it is possible that the external border of the industrial objects has come significantly closer to the village of Berezovka.

She believes that “under the new calculation, it is altogether likely that the village of Berezovka is located not on the border, but on the territory of the SPZ itself.”

The leader of the public association has not received a concrete answer. It was only dryly reported to her that the issue of the zone’s territory is still under consideration.

Experts believe that in the future, rather than hiding its head in the sand, the country’s government is going to have to resolve the question of the safety of the residents of Western Kazakhstan Oblast’s Burlinsky Raion. Five other villages, consisting of nearly nine thousand people, are situated on the perimeter of the Karachaganak Field’s SPZ—the villages of Uspenovka, Zharsuat, Karachaganak, Zhanatalap and Priuralny. The residents of these villages are also experiencing negative impacts from the Field and, sooner or later, will raise the issue of their relocation.

If the new legal process ends positively and the lawsuit demands are satisfied, the villagers of Berezovka will be relocated. As a rule, the expenses in such cases are incurred by the company that is operating the Field. However, in accordance with the final Production Sharing Agreement, all charges on foreign investors are compensated for by the Kazakhstani government. Therefore, the relocation decision should be made at the federal level.

….It should be noted that this case is unprecedented. We think that there is hardly another country in which the question of the size of a Sanitary Protection Zone for a major oil and gas condensate field, and most importantly, the safety and health of the people living along the zone, would not be resolved during the course of six years.

Translated by Crude Accountability

Details: AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Human Rights, OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Lawsuit on the Government’s Failure to Act: A Complaint has been Submitted!

27.02.2009 admin

On February 12, the Ecological Society “Green Salvation”, the Kazakhstan International Bureau for Human Rights and Rule of Law, and the Nationwide Public Association “Shanyrak” issued a complaint to the Appellate Board on Civic Affairs for the Astana City Court. The complaint was submitted in connection with the fact that, on January 30, the judge of the Almaty District Court of Astana City decided that the case falls under the jurisdiction of the… Specialized Interregional Economic Court of Astana City!

At a press conference on January 27, 2009, the plaintiffs reported that the lawsuit was filed on June 19, 2008 in the interests of the village of Berezovka (Western Kazakhstan Oblast). For nearly half a year and under various pretexts, Astana’s city courts—including the Specialized Interregional Economic Court—refused to accept the lawsuit. However, on December 11, 2008, the Board on Civic Affairs of the Astana City Court satisfied the plaintiff’s complaint and issued a decision to review the lawsuit on its merits in the Almaty District Court of Astana City.

The trial session took place on January 30, 2009. At the assigned time, the judge proceeded to review the case, verified the authority of the parties, heard their explanations on the merits of the lawsuit, received the plaintiffs’ petition to call in the General Public Prosecutor, and then retreated to the deliberation room to decide upon a verdict. But instead of a verdict, the judge issued a determination to return the lawsuit to the plaintiffs, stating that the case falls under the jurisdiction of the Specialized Interregional Economic Court!

Disagreeing with the judge’s determination, the plaintiffs submitted a complaint to the Astana City Court, with the request:

— to rescind the judge’s determination as an illegal decision, handed down without consideration of the circumstances of the case, and in violation of the December 11, 2008 decision from the Board on Civic Affairs of the Astana City Court;

— to require the judge to review the case on its merits and to issue a verdict in accordance with the requirements of the law.

Information on future case developments will be published on our website.

Translated by Michelle Kinman.

Details: AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Human Rights, OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

For the first time, a court in the Republic of Kazakhstan has agreed to review a lawsuit from the public against the government for its failure to act

27.01.2009 admin

For the first time, a court in the Republic of Kazakhstan has agreed to review a lawsuit from the public against the government for its failure to act, which has led to a violation of the right of citizens to a healthy environment.

Kazakhstan Press Club
January 27, 2009, 12:00 PM

PRESS RELEASE

The lawsuit was submitted on June 19, 2008 in the interests of the residents of the village of Berezovka (Western Kazakhstan Oblast) by the Ecological Society “Green Salvation”, the Kazakhstan International Bureau for Human Rights and Rule of Law, and the Nationwide Public Association “Shanyrak”. For nearly half a year and under various pretexts, a number of Astana’s city courts refused to accept the lawsuit for review. Finally, on December 11, 2008, the Board of Civic Affairs of the Astana City Court satisfied the plaintiff’s complaint and issued a decision to review the lawsuit on its merits in the Almaty District Court of Astana City.

In 1979, the Karachaganak Oil and Gas Condensate Field was opened near Berezovka, which currently has a population of nearly 1400. In 1997, the field was turned over to the international consortium “Karachaganak Petroleum Operating B.V.” for development. The active development of the field has led to intensive environmental pollution. Kazakhstan’s Ministry of Environmental Protection lists KPO as an enterprise that is especially dangerous to the environment. In 2002, the Ministry of Public Health established a Sanitary Protection Zone with a radius of 5000 meters around Karachaganak, and a portion of the village of Berezovka fell within this boundary. As it is not permitted for people to live within Sanitary Protection Zones, the residents of Berezovka should have been relocated to a safe location. The relocation issue has been raised repeatedly. However, the government has not resolved the issue.

The government’s failure to act forced the residents of Berezovka, with the assistance of public organizations, to appeal (in 2004, 2007 and 2008) to the International Finance Corporation’s (IFC) Office of the Compliance Advisor/Ombudsman (CAO). The IFC awarded a loan of $150 million to Lukoil, one of the companies comprising KPO. In their complaints, the local residents draw attention to the fact that the IFC’s investment is fostering environmental pollution. The Berezovka residents also raise the need for relocation and compensation for damages incurred. In response to the first complaint, the CAO conducted an audit and acknowledged that the monitoring of atmospheric emissions and water quality conducted by KPO is not in accordance with the IFC’s requirements. The process of reviewing the complaints is still underway.

In accordance with the statutes of the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) and the laws of the Republic of Kazakhstan, the public has the right to contest in court actions or lack of actions on the part of government bodies, which violate the provisions of national legislation.

The violation of the Sanitary Protection Zone conditions, which was cause for appealing to the court, is, unfortunately, a typical example of the lack of compliance with environmental protection legislation in our country. Public enterprises as well as government bureaucrats are the perpetrators of these legal violations. As a result, the health and lives of thousands of people is under constant threat. One of the fundamental rights of each person—in this and future generations—is being violated: the right to live in an environment that is favorable to his/her health and wellbeing.

On January 26, 2009, the first trial session on this lawsuit is to be held in the Almaty District Court of Astana City. The session results will be announced at the press conference.

More information is available at www.greensalvation.org

Press Conference Participants:

Sergey Georgievich Kuratov, Chair of the Ecological Society “Green Salvation”;

Evgenii Aleksandrovich Zhovtis, Director of the Kazakhstan International Bureau for Human Rights and Rule of Law;

Asylbek Bazarbaevich Kozhakhmetov, Chair of the Nationwide Public Association “Shanyrak”.
Address of the Kazakhstan Press Club:
Almaty, 050059, microraion “Samal-2”
ul. Furmanova, at the corner of Al’-Farabi
Business Center “СAТТІ, Entrance 1 (from ul. Furmanova).
Tel.: +7 (727) 272-79-92, 272-88-67, 272-82-37, 261-77-73
E-mail: info@pressclub.kz
www.pressclub.kz

Details: AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Human Rights, OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Supreme Court of the Republic of Kazakhstan – Decree of the Court No. 4GP-64-08

26.03.2008 admin

Supreme Court of the Republic of Kazakhstan
010000, Astana, Levyi Bereg Reki Ishim, Ulitsa Tauelsyzdyk, d-39
Tel: (7172) 74-75-85, Fax: (7172) 74-78-13, Email: v_sud@kepter.kz

090000
Specialized Interregional Economic Court
Western Kazakhstan Oblast090000, Western Kazakhstan Oblast Court010000, General Public Prosecutor’s Office of the Republic of Kazakhstan

09000, Uralsk, Ul. Dostyk-Druzhba, d. 215
Office 306, representing the Ecological Society
Green Salvation, P.M. Kochetkov, P.M.

05000, Almaty, Ul. Shagabutdinova, d. 58, kv. 28
Ecological Society Green Salvation

090306, Western Kazakhstan Oblast
Burlinsky Raion, Berezovka, Anosova, S..Ya.

09000, Uralsk, Ul. Mukhita, 50/1 GU
Statistics Department of Western Kazakhstan Oblast
Khamzin A.

In reference to the civil case concerning the request by the public association the Ecological Society Green Salvation to the Head of the Government Department “Statistics Department of Western Kazakhstan Oblast”, A. Khamzin, about the acknowledgment of the activity by the responsible individual for the refusal to provide the requested information about pollution of the atmosphere by emissions from the enterprise, “Karachaganak Petroleum Operating, B.V.”, which violated the rights and legal interests of the individual, S. Ya. Anosova, the requirement to present information about the emissions from the enterprise, “Karachaganak Petroleum Operating, B.V.”, which are polluting the atmosphere, with the ordinance of the Review Board of the Supreme Court of the Republic of Kazakhstan from March 26, 2008 for implementation.Attachment:
addressing: civil act No. 2-436/07 in one volume of 181 pages:
to four addressees — copies of the legal documents in five pages, a copy of the decision in five pages;
to the other addressees — copies of the decision in five pages.
Chairman of the Review Board A. Smolin

0105539

***

Decree of the Court
No. 4GP-64-08

26 March 2008

Astana

The Supreme Court’s Review Board on Civic Affairs of the Republic of Kazakhstan, consisting of the presiding representative of the Review Board A.S. Smolin, Judge G.B. Ak-kuova, B.K. Axmetov, V.V. Nozdrin, L.G. Poltorabatko, and with the participation of Deputy General Public Prosecutor of the Republic of Kazakhstan, R.N. Mamyrbaev, reviewing in open court session the civil case on the application of the public organization, the Ecological Society Green Salvation to the Head of the Government “Statistics Department of Western Kazakhstan Oblast” A. Khamzin on the acknowledgement of the action of the responsible person for the refusal to provide requested information on the emissions of the enterprise, “Karachaganak Petroleum Operating, B.V.” for polluting the atmosphere, violating the rights and legal interests of the individual, S.Ya. Anosova, which was required to present information on the emissions of the enterprise, “Karachaganak Petroleum Operating, B.V.”, polluting the atmosphere, and admitting to the complaint for review by the representative of the public organization, the Ecological Society Green Salvation through the power of attorney of P.M. Kochetkov for the decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast from May 7, 2007 and the statement of colleagues of the civil case of the Western Kazakhstan Oblast Court from 12 June 2007.

Established:

The public organization the Ecological Society Green Salvation (further, ES Green Salvation) appealed to the court with an application to the Head of the Government “Statistics Department of Western Kazakhstan Oblast” (further GD), A. Khamzin, on the acknowledgement of the activity of the responsible person on the refusal to provide the requested information on emissions of the enterprise “Karachaganak Petroleum Operating, B.V.” (further “KPO B.V.”), polluting the atmosphere, violating the rights and legal interests of the individual S.Ya. Anosova.. This individual was required to present the information on the emissions of the enterprise “KPO B.V.”, which was polluting the atmosphere, motivated by the presentation of the demand that on 16 January 2007, the ES Green Salvation, appealed to the GD with a request to present the information on the emissions of toxic substances into the atmosphere by the enterprise, KPO, B.V. However, A. Khamzin, the Head of the GD, refused to present the information, stating in his letter No. 7-1-45/127 of January 24, 2007 that the information was confidential.

The decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast of May 7, 2007 with regard to the application of the ES Green Salvation was a refusal.

The decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast from May 7, 2007 was unchanged by the decision of the Board on Civic Affairs of Western Kazakhstan Regional Court from June 12, 2007.

In the complaint for review, the representative of the ES Green Salvation, through the power of attorney of P.M. Kochetkov, requested that the decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast of May 7, 2007 be changed and the decision of the Board on Civic Affairs of the Western Kazakhstan Oblast Court from June 12, 2007, and make a new decision on the outcome of the application, considering the violation of norms of material and procedural rights by the courts.

Having listened to the report of Judge G. B. Ak-Kuova on the circumstances of the case and the arguments of the complaint, and the conclusions of the public prosecutor regarding the suppositions of the complaint and the materials from the civil case, the Board finds in the case of the legal acts subject to cancellation because of the following.

In accordance with Article 387 of the Civil Procedural Code, the existing violations of the norms of material or procedural rights provide the grounds for reconsidering the review procedures, which bear the legal force of court acts.

According to the facts of the case, a violation of the standards of material rights has occurred, which has resulted in an incorrect interpretation of the standard of the law.

In the complaint under consideration, the declarant claims that the ES Green Salvation, as a public organization, having the right to receive complete and reliable environmental information according to the standards of the Ecological Code, appealed to the GD “Statistics Department of Western Kazakhstan Oblast” with a request to obtain the annual data from the State Statistical Report Form 2-TP “Air” on emissions of polluting elements in the atmosphere from the enterprise, KPO B.V. for the years 2000-2006.

However, in the letter from the Department Head, A. Khamzin, No. 7.1-45/127 from January 24, 2007, the requested information was refused, because physical and legal entities are guaranteed the protection of state and commercial secrets, and the confidentiality of primary statistical information on the basis of personal responsibility of the employees of organs of state statistics and in accordance with the legislation of the Republic of Kazakhstan.

The declarant believes that the requested information does not qualify as a state or commercial secret. Furthermore, the ES Green Salvation requested information about the state of the pollution of the atmosphere by the enterprise KPO B.V., and not primary information about the legal entity KPO B.V.

The Supreme Court’s Review Board on Civic Affairs finds the stated argument of the complaint to have basis.

The Court, in refusing to satisfy the lawsuit filed by the ES Green Salvation, justified its conclusions, saying that the information requested by the declarant in the form 2-TP “Air” “Report on the Protection of Atmospheric Air” is primary statistical information.

In accordance with Point 2, Article 11 of the Law “On State Statistics,” the representative organ and its territorial subdivisions are required, within the limits of their capacity, to observe the confidentiality of primary statistical information on the basis of personal responsibility of the employees of the state organs of statistics in accordance with the legislation of the Republic of Kazakhstan.

Therefore, the Court came to the conclusion that the information requested by the ES Green Salvation is primary, and therefore, confidential.

Meanwhile, in accordance with Article 2 of the Law “On State Statistics”, primary statistical information—data about concrete physical individuals, legal entities and their structural subsections—introduced during statistical observation by organs of state statistics for statistical purposes.

As is clear from the materials from the case, the ES Green Salvation did not ask for evidence of the number of workers at KPO B.V., their salaries, profiles of their activity, or structural subdivisions. Therefore, it is impossible to agree with the conclusions of the Court that the requested information on the atmospheric emissions is primary information, and therefore confidential.

According to the Law of the Republic of Kazakhstan from October 23, 2000, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Aarhus (Denmark) on June 25, 1998 (further the Aarhus Convention) was ratified.

This Convention assigns special significance to the transparency of information regarding environmental pollution. First, this information cannot be called a commercial secret, and secondly, this serves as further basis for decision-making on the disclosure of confidential information. The Board proposes that when a public request for a document with a confidential character is received, the state organ must exclude the closed information from the document, providing access to the remainder of the document.

In the development of the provisions of the Aarhus Convention in the Concept of Environmental Safety from 2004-2015, approved by decree of the President of the Republic of Kazakhstan from December 3, 2003, No. 1241, public access to environmental information and the public’s participation in environmental decision-making was identified as one of the basic principles of environmental safety.

In accordance with Point 3, Article 4 of the Constitution of the Republic of Kazakhstan, international agreements ratified by the Republic have priority over national laws and are applied directly, except in instances when from the international agreement it follows that its application demands the promulgation of law.

In connection with what is set forth, the Board finds the possible application of Article 4 of the Aarhus Convention in the examination of this case.

Thus, in accordance with the provisions of this article in the request for the presentation of environmental information, it is possible to determine whether divulging this information would negatively impact:

a) the confidentiality of the work of state organs in instances where this confidentiality is covered by national legislation;

b) the confidentiality of commercial and industrial information in those circumstances when the confidentiality is protected by law with the purpose of protecting legal economic interests. In these parameters, information on emissions, related to environmental protection, is subject to disclosure.

The abovementioned bases for refusal are interpreted in a limited way with regard to the interest of the pubic in disclosure of the information and with regard for the fact that the requested information is related to emissions in the environment.

An analysis of the above-described standards, including both national legislation and an international agreement, demonstrate that the requested environmental information cannot be closed, and the presentation of this information will not negatively impact the confidentiality of the work of the state organ, in particular the organ of statistics. Furthermore, information on emissions, related to environmental protection, must be disclosed.

Paying attention to the decreed responsibility, the Board believes that the refusal of the statistics organs in providing information on emissions into the atmosphere contradicts the standards of the international agreement, and in this connection the legal decision is liable to repeal with the new decision on the satisfaction of the demands of the declarant.

On the basis of what has been stated here, and guided by Article 398 of Civil Procedural Code, the Review Board.

ORDERED:

The decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast from May 7, 2007, and the decree of the court of the Board on Civic Affairs of the Western Kazakhstan Oblast Court from June 12, 2007 are repealed.

The lawsuit of the ES Green Salvation is satisfied.

To require GD “Statistics Department of Western Kazakhstan Oblast” to provide the ES Green Salvation with the requested environmental information.

To satisfy the reviewed complaint.

Chairman A.S. Smolin

Judges of the Review Board: G.B. Ak-kuova, B.K. Akhmetov, L.G. Poltorabatko, V.V. Nozdrin

Copy verified by Judge G.B. Ak-kuova

* * *

Unofficial translation from Russian to English by Crude Accountability.

Details: AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Human Rights, OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Letter from Office of the Compliance advisor/Ombudsman

25.07.2007 admin

On July 25, 2007, Green Salvation received letter from CAO. Ombudsman office suggested to close the complaint of organization. Green Salvation has rejected this suggestion and required to investigate the complaint.

Office of the Compliance advisor/Ombudsman

2121 Pennsylvania avenue, NW • Washington, DC 20433, USA
Telephone (202) 458-9452 • Facsimile (202) 522-7400
MTaylor@ifc.org

July 25, 2007

Mr. Sergey Solyanik
on behalf of Green Salvation
The Ecological Society Green Salvation
St.Shagabutdinov 58-28
050000, Kazakhstan, Almaty

Sent by electronic mail (grsalmati@gmail.com) and courier:

Dear Mr. Solyanik,

I am writing to follow up on the complaint you had provided to our office on April 12 2007. We have now had an opportunity to review the issues you have raised and discuss them with the parties concerned.

Our understanding is that your principal concerns relate to specific IFC policy violations which you believe have resulted in harmful environmental conditions and health effects of local residents. You have raised concerns about transparency and public access to information on environmental discharges and public health, the re-zoning of the Sanitary Protection Zone (SPZ) and resettlement.

As you are aware, the CAO has been involved on complaints relating to the KPO project since 2004. The issues you have raised have been investigated by our office in its response to concerns raised by the residents of Berezovska in September 2004. We have reported on the status of our work with respect to this complaint on our website (http://www.cao-ombudsman.org/html-english/complaint_karachaganak.htm).

In response to this complaint, we have undertaken two field assessments (in December 2004 and February 2006) during which we engaged directly with project-affected communities, complainants and company representatives. Our last field visit promoted extensive discussion amongst the principal parties about their desire to resolve the complaint through a fact-finding process organized by the Ombudsman. Based on information from that visit, CAO released a progress report which included a recommended process for establishing a multi-party monitoring initiative — an idea first proposed by KPO. The parties were asked to confirm to CAO whether they were willing to pursue the multiparty monitoring program or attempt some other type of solution.

Both parties have responded that they wish to resolve the conflict through Kazakhstan’s legal and regulatory authorities, rather than attempt a mediated or collaborative process through the Ombudsman. Accordingly, the Ombudsman transferred the complaint to CAO’s Compliance Office for a judgment on IFC’s compliance with relevant environmental, social and disclosure policies. An appraisal report was made public on April 17 2007, and Terms of Reference for the Audit released soon after.

Both these documents are available on our website (http://www.cao-ombudsman.org/html enqlish/complaintKazkhstanCompliance.htm) where any updates on the status of the audit will also be published. The final audit report must be cleared by the President before it is released publicly together with IFC’s management response.

It is our understanding that the positions of parties has not changed since the completion of our last assessment visit. In addition, the audit report which we are completing may well provide you with a number of answers to the specific questions and concerns you have raised. On that basis, we are recommending that we close your complaint at this time, on the understanding that you may wish to review your position once the audit report has been released. If at such time in the future, you wish to re-submit a complaint based on new information or evidence that the parties are willing to engage in a dispute resolution process, you are free to do so.

Thank you for raising these concerns with the CAO and we look forwards to providing you with a copy of our audit report in due course.

With kind regard,

Meg Taylor
Compliance Advisor/Ombudsman

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AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

24.07.2007 admin

The village of Berezovka is located in the Burlinsky District of Western Kazakhstan Oblast. It was formerly a central farmstead in the “Akbulaksky” state farm, one of the wealthiest farms in the oblast. Nearly 1400 people currently reside in the village.

In 1979, the Karachaganak Oil and Gas Condensate Field was opened adjacent to Berezovka. In 1997, the international consortium “Karachaganak Petroleum Operating, B.V.” began developing the field, leading to severe environmental pollution.

KPO is one of the largest projects in the Republic of Kazakhstan, and has been included in a list from the Ministry of Environmental Protection of enterprises that are particularly dangerous to the environment. In 2002, the Ministry of Public Health established a Sanitary Protection Zone (SPZ) with a radius of 5000 meters around the Karachaganak Field, and a portion of the village of Berezovka falls within this zone. In accordance with Kazakhstani legislation, people are not permitted to live within Sanitary Protection Zones. For this reason, the residents of the village should have been relocated to a safe location. The issue of relocation has been raised repeatedly with local authorities and authorized government bodies.

However, in 2004, the State’s Senior Sanitary Doctor made the decision to reduce the SPZ from 5000 to 3000-3840 meters, violating a number of requirements set forth in national legislation and in the Aarhus Convention. As a result, the village of Berezovka found itself outside of the SPZ’s boundaries.

In 2006, the General Public Prosecutor issued a protest against this decision. As a result, the decision was recognized as illegal and it no longer carries legal force. Today, the SPZ has been restored to 5000 meters.

Since 2002, the residents of Berezovka have tried unsuccessfully to defend their rights to live in a healthy environment. Their repeated appeals to the authorities and KPO to resolve the issue of relocation have not led to any concrete results.

In 2004, Berezovka residents were compelled to submit a complaint to the International Finance Corporation’s (IFC) Office of Compliance Advisor/Ombudsman (CAO). In 2002, the IFC awarded a $150 million loan for development of the Karachaganak Field to Lukoil, which together with ENI, BG Group, and Chevron, comprises KPO. Therefore, the local residents appealed to the CAO, stating that the IFC’s investment is fostering environmental pollution. In 2007 and 2008, two additional complaints were filed, raising the issue of the need to relocate the residents of the village and to provide them with compensation for damages incurred. In response to the first complaint, the CAO conducted an audit, the results of which were published in April 2008. The CAO acknowledged that KPO’s monitoring of atmospheric emissions and water quality was not in compliance with the IFC’s standards. The complaint review process is still underway.

In 2007, KPO was the focus of a corruption scandal. The United States District Court for the Southern District of Texas, found the American company Baker Hughes, which was a contractor at KPO, guilty of bribing Kazakhstani bureaucrats. As such, the American entrepreneurs were awarded a profitable contract to participate in the preparatory work at the Karachaganak Field.

In connection with the Government’s failure to act, on June 19, 2008, the Ecological Society Green Salvation, the Kazakhstani International Bureau for Human Rights and Rule of Law, and the Nationwide Public Association “Shanyrak” filed a lawsuit in Kazakhstan on behalf of the residents of the village of Berezovka.
Translated by Michelle Kinman.

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KARACHAGANAK IN THE NEWS (Crude Accountability)

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— Appeal Regarding the Emergency Situation in the Village of Berezovka (2.12.2014)

— Sinkholes Appear in and Around the Village of Berezovka Near the Karachaganak Field in Kazakhstan (19.01.2011)

— A Town that Suffers because of World Bank Inaction (youtube — CrudeAccountability) (2010).

— A lawsuit about the government inactivity. Court on-site hearings in Berezovka village (13.05.2010)

— Kazakhstan has Charged an Oil Extraction Consortium $700 Million in Illegal Revenue (Gazeta.ru, 26.03.2010)

— The People have Taken a Partial Step towards Victory (Republic, 02.02.2010)

— Lawsuit on the Government’s Failure to Act: A Complaint has been Submitted! (27.02.2009)

— For the first time, a court in the Republic of Kazakhstan has agreed to review a lawsuit from the public against the government for its failure to act, which has led to a violation of the right of citizens to a healthy environment (27.01.2009).

— On May 9, the Ecological Society Green Salvation and Crude Accountability submitted a joint complaint to the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC) to protect the rights of Berezovka residents (Burlinsky District, Western Kazakhstan Oblast). It is the third public complaint to the CAO regarding this problem. On June 5, the CAO announced that an assessment of the complaint will be undertaken.

— Supreme Court of the Republic of Kazakhstan — Decree of the Court No. 4GP-64-08 (26.03.2008)

— APPRAISAL REPORT. Case of Green Salvation / Residents in the Village of Berezovka II (15.01.2008)

— ASSESSMENT REPORT. Case regarding the Green Salvation Ecological Society and Karachaganak Petroleum Operation (15.11.2007)

— Letter from Office of the Compliance advisor/Ombudsman (25.07.2007)

— Appeal of Kazakhstani and American NGOs to the World Bank (13.06.2007)

— IFC Officially Confirmed That the Complaint Is Eligible for Further Assessment (02.05.2007)

— Complaint to Compliance Advisor/Ombudsman International Finance Corporation (11.04.2007)

— An Oil Democracy, or the Story of Berezovka (Green Salvation Herald, 2006)

— Film «Svetlana’s Story» (08.2003)

Human Rights, OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Appeal of Kazakhstani and American NGOs to the World Bank

13.06.2007 admin

Last week several Kazakhstani and American NGOs sent an appeal to the World Bank’s Department of Institutional Integrity. The appeal addressed the fact that the US government found the company Baker Hughes guilty of bribing Kazakhstani bureaucrats in order to secure a profitable contract to participate in the development of the Karachaganak Oil and Gas Condensate Field.

On June 15, 2007, the World Bank’s Department of Institutional Integrity confirmed receipt of the appeal and stated it would investigate the claims.

The organizations below signed the appeal and request that rights-protecting bodies of the Republic of Kazakhstan join the investigation undertaken in the US by stopping the guilty parties from the Kazakhstani side.

This corruption scandal is destroying the image of the republic on the international level and is decreasing the investment attractiveness of the country in the eyes of foreign investors.

To:
Department of Institutional Integrity
The World Bank
Email: investigations_hotline@worldbank.org

June 13, 2007

To the Director of the Department of Institutional Integrity:

We are writing to you to express our concern about the IFC’s ongoing involvement in the development of the Karachaganak Oil and Gas Condensate Field in light of a recent Foreign Corrupt Practices Act conviction by the US Department of Justice.

On April 26, 2007, the Texas-based oil services company Baker Hughes pled guilty to violating US anti-bribery provisions under the United States Foreign Corrupt Practices Act and agreed to pay a fine of $44 million. Baker Hughes employee, Roy Fearnley, was identified in the case as the individual responsible for paying a bribe to ensure a successful bid for a Baker Hughes contract at Karachaganak.

Baker Hughes was charged with engaging in corrupt practices in a successful attempt to win a tender to operate at the Karachaganak Oil and Gas Condensate Field in western Kazakhstan. The operator at the Karachaganak Field is Karachaganak Petroleum Operating, B.V. (KPO), a consortium of international oil companies comprising British Gas, ENI/Agip, Chevron and Lukoil. Lukoil received $150 million in financing from the International Finance Corporation in 2002 to support operations at Karachaganak.

The facts of the case are outlined below, and taken from the SEC’s website (http://sec.gov/litigation/litreleases/2007/lr20094.htm).

“The SEC’s complaint alleges that Baker Hughes paid approximately $5.2 million to two agents while knowing that some or all of the money was intended to bribe government officials, specifically officials of State-owned companies, in Kazakhstan. The complaint alleges that one agent was hired in September 2000 on the understanding that Kazakhoil, Kazakhstan’s national oil company at that time, had demanded that the agent be hired to influence senior level employees of Kazakhoil to approve the award of business to the company. Baker Hughes retained the agent principally at the urging of Fearnley. According to the complaint, Fearnley told his bosses that the «agent for Kazakhoil» told him that unless the agent was retained, Baker Hughes could «say goodbye to this and future business.» Baker Hughes engaged the agent and was awarded an oil services contract in the Karachaganak oil field in Kazakhstan that generated more than $219 million in gross revenues from 2001 through 2006. Baker Hughes, the complaint alleges, paid the agent $4.1 million to its bank account in London but received no identifiable services from the agent.”

According to court documents (Exhibit 99.2: http://sec.edgar-online.com/2007/05/01/0000950134-07-009594/Section35.asp), “In or about early October 2000, officials of KPO notified BHSI and Baker Hughes that the Baker Hughes tender was successful and the Karachaganak contract was awarded to Baker Hughes. The Integrated Services Contract between KPO and BHSI became effective on or about October 23, 2000. Thereafter, Baker Hughes and operating divisions Baker Atlas, Baker Oil Tools, and INTEQ, through Baker Hughes’s subsidiary BHSI, performed services pursuant to the contract with KPO.” Baker Hughes employee Roy Fearnley, was charged with “violating and aiding and abetting violations of the FCPA” by the SEC (http://sec.gov/litigation/litreleases/2007/lr20094.htm).

As a party to this agreement, Karachaganak Petroleum Operating, B.V. was involved in an illegal contract with Baker Hughes at the time that consortium member, Lukoil Overseas Operating, applied for and received financing from the International Finance Corporation.

The Baker Hughes’ corruption conviction appears to violate the following INT guidelines: bid manipulation, coercive practices, fraudulent bids, fraud in contract performance, bribery or acceptance of gratuities, abuse of authority, and misuse of Bank Group funds.

In particular, in addition to merely being a subcontractor to KPO—enough reason to warrant investigation—because Baker Hughes is a provider of oil service products, the question of whether Bank funds were directly used to pay Baker Hughes for their activity as contractors at Karachaganak must be thoroughly investigated.

The IFC-funded development of the Karachaganak Field has been severely detrimental to the health and safety of local populations living near the field, in particular to the residents of the village of Berezovka, which is located five kilometers from the field. Environmental degradation threatens the community, air pollution has caused serious health problems within the community, and the villagers have concluded that their only option is to seek compensation and relocation to a safe and healthy location. Detailed information on the devastating impacts of the Karachaganak operations is available at http://www.crudeaccountability.org/eng/campaigns/karachaganak/karachaganak.htm.

Two separate complaints about the IFC’s financing at Karachaganak have been filed with the Office of Compliance, Advisor, Ombudsman at the International Finance Corporation. The first complaint, which was submitted in 2004, has been transferred from the ombudsman’s function to compliance following an extensive investigation by the CAO’s office, which resulted in a report that was published in April 2005. The second complaint, which was filed in April 2007, has been accepted by the CAO and is in the initial phases of investigation.

Concerns about corruption at Karachaganak have been present since the onset of the project, but difficult to prove. The Baker Hughes case demonstrates to the local population what they have known all along: the project is not transparent or accountable to the public.

Therefore, we, the undersigned organizations, urge the INT to investigate the extent to which corruption that occurred at Karachaganak may extend beyond that which was investigated by the US Securities and Exchange Commission including, but not limited to, corruption that may have occurred in the establishment of the project’s Sanitary Protection Zone. We also request that the IFC withdraw its loan to KPO, cease any further engagement with the consortium and refrain from any future financing of the Karachaganak Oil and Gas Condensate Field. Additionally, we urge the INT to place Baker Hughes, Roy Fearnley, Kazakhoil and each of the companies of the Karachaganak Petroleum Operating, B.V. consortium on the list of debarred firms and individuals. Finally, we urge the IFC to cease all financing to the oil and gas sector in Kazakhstan because of the involvement of the Kazakhstani state oil company, Kazakhoil, in the Baker Hughes case.

Thank you for your attention to this matter, and we look forward to hearing from you soon.

Sincerely,

Kate Watters
Executive Director, Crude Accountability
kate@crudeaccountability.org

Sergey Solyanik
Co-Chair, Ecological Society Green Salvation

Svetlana Anosova
Director, Berezovka Initiative Group
sanosova@mail.ru

Evgeniy Zhovtis
Director, The Kazakhstan International Bureau for Human Rights and Rule of Law
zhovtis@omaz.almaty.kz

Details: AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Human Rights, OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Complaint to Compliance Advisor/Ombudsman International Finance Corporation

11.04.2007 admin

Translated by CAO

Complaint

To: Compliance Advisor/Ombudsman
International Finance Corporation
2121 Pennsylvania Avenue, NW
Washington, DC 20433 USA
Fax: 1 202 522 7400
Email: cao-compliance@ifc.org

The Green Salvation Ecological Society (ES) is filing a complaint with regard to the implementation of project #9953 by the company Lukoil Overseas Karachaganak B.V., which received credit from the International Finance Corporation to develop the Karachaganak oil and gas condensate field in the Republic of Kazakhstan (RK). The ES is filing the complaint to defend the rights of the residents of the village of Berezovka (Burlinsky District, Western Kazakhstan Oblast, Republic of Kazakhstan), which are being violated during the implementation of the project. The complaint is being filed on the basis of an appeal by the residents of the village of Berezovka to the ES dated 3 April 2007 and a power of attorney dated 8 November 2006, the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Article 3.9) and the RK Ecological Code (Article 14.1), which are the legal basis of the activities of public organizations defending the rights and interests of the inhabitants of the Republic of Kazakhstan.

The Green Salvation Ecological Society is a public nonprofit organization (RK Ministry of Justice Registration No. 2032-1910-OO), headquartered at the address:
ul. Shagabutdinova, 58, Apt. 28
Almaty, Kazakhstan 050000 phone/fax (3272) 536256
e-mail: grsalmati@gmail.com
www.greensalvation.org

Grounds for the complaint.

1. Name, implementation site and substance of the project

In 2002 the International Finance Corporation (IFC) granted the company Lukoil Overseas Karachaganak B.V. credit totaling $150 million to implement project #9953, which is aimed at developing the Karachaganak oil and gas condensate field (www.ifc.org). Lukoil Overseas Karachaganak B.V. is a member of the international consortium Karachaganak Petroleum Operating B.V. (KPO), which operates the Karachaganak field (Burlinsky District, Western Kazakhstan Oblast, Republic of Kazakhstan).

2. Participant in the project: The International Finance Corporation.

3. Project sponsor: Lukoil Overseas Karachaganak B.V.

4. The interests of Berezovka’s residents are affected by the following socio-ecological consequences of the project’s implementation:

The village of Berezovka is situated in proximity to the Karachaganak oil and gas condensate field, which is distinguished by a high hydrogen sulfide content in the natural gas of 4 to 4.3 percent (Report by the CAO ombudsman, 19.04.2005, p. 5). Under national law the field is a hazard class 1 enterprise and has been added by the RK Ministry of Environmental Protection to the list of especially hazardous facilities (Procedure for Distribution of Powers Between the Republic of Kazakhstan Ministry of Environmental Protection and Oblast (Municipal) Territorial Environmental Protection Bureaus With Regard to the Ecological Experts’ Review, No. 134-p, dated 11 June 2003).

After KPO began active development of the field the ecological situation in Berezovka rapidly began to deteriorate, which is having a deleterious impact on people’s health and welfare. Since Berezovka was part of the field’s five-kilometer sanitary-protection zone (SPZ), pursuant to the sanitary guidelines and regulations SNP No.1.01.001-94 (Appendix 1, the section “ The Extraction and Exploration of Ores and Nonmetalliferous Minerals,” Class 1 “A Sanitary-Protection Zone of At Least 1,000 m,” paragraph 3, note), according to Republic of Kazakhstan law the residents of the village should have been resettled in a safe location, a fact that was repeatedly pointed out by state agencies (Letters No. 02-05-09/1639 dated 29.05.2002 and No. 2-2-2-12/300-2 dated 04.03.2005). In 2003, however, the RK Chief Sanitary Officer reduced the SPZ from five to three kilometers on the grounds that KPO had “introduced advanced technology in the field and had partially revised the operating procedure itself” (Letters No. 2-2-1-35/k/E-16 dated 21.05.2005 and No. 07-21-8056 dated 01.09.2006). The reduction of the SPZ was carried out without an environmental impact assessment and a state ecological experts’ review, without providing information to the local residents and without their participation in the decision-making process, and their opinion was not taken into account (Letter No. 3-2-2-12/2 dated 25.01.2005). This is a violation of the provisions of the Aarhus Convention (Article 6) and the 1997 RK Law on Ecological Experts’ Reviews (Articles 13, 14, 15.1, 16 and 36). As a result the village of Berezovka found itself outside the newly approved SPZ. For five years the residents of Berezovka have unsuccessfully tried to protect their rights to live in a healthy environment, feeling the effects of toxic waste from the field on a daily basis. Repeated requests by the residents that the authorities and KPO resolve the issue of relocation have not produced any results. For more detail, see the article “An Oil Democracy, or the Story of Berezovka” (Green Salvation Herald 2006, pp.82-95).

In 2006 additional evidence was obtained regarding the illegality of the reduction of the SPZ, an increase in the amount of emissions into the atmosphere from the field and a violation by KPO of a whole host of requirements in Republic of Kazakhstan environmental protection law. By expanding production and introducing new technologies, KPO continues to violate the provisions of international conventions and RK law, increasing the amount of environmental pollution and creating a hazard to people’s health and safety. We bring new facts to your attention. Specifically:

The RK Prosecutor General ruled that the finding by the RK Chief Sanitary Officer to reduce the SPZ around the Karachaganak field was illegal and issued a directive to rescind the finding. As a result, the RK Ministry of Public Health suspended the aforementioned finding and adopted a decision to establish a commission to conduct studies of the air in communities and to justify the size of the SPZ (Letter No. 7-21-06 dated 30.05.2006).

— The Public Health Ministry commission determined that “KPO B.V. sharply increased the emission of pollutants into the air in 2004-2005 over 2002-2003.” It also noted that “there have been complaints from the public who live in communities adjacent to the field about a gas odor, uncomfortable living conditions and health anomalies.” It acknowledged that the introduction by KPO of new technologies entails “risks of emergencies” (Letter No. 07-21-6887 dated 08.08.2006).

— The RK Ministry of Environmental Protection and the Western Kazakhstan Oblast territorial environmental protection bureau acknowledged that from 2002 through 2006 the plans related to the introduction of new technologies by KPO were not submitted for ecological experts’ reviews (Letters No.03-02-01-10/8182 dated 05.10.2006 and No. 2681 dated 27.10.2006). That is, as in the case of the reduction of the SPZ, the introduction of new technologies by KPO was carried out without an environmental impact assessment and a state ecological experts’ review, without providing information to the local residents and without their participation in the decision-making process, and their opinion was not taken into account. This is a violation of the provisions of the Aarhus Convention (Article 6) and the 1997 RK Law on Ecological Experts’ Reviews (Articles 13, 14, 15.1, 16 and 36).

— At the end of 2006 the Kazakh Environmental Protection Society (KEPS), in accordance with RK law, conducted a public ecological experts’ review of the design and regulatory documents of KPO’s activities with regard to environmental protection. In particular, the experts’ report cites the following violations in the activities of KPO:

“Violations were uncovered in the revision of the SPZ dimensions from the regulatory 5,000 m to 1,500 m and the current 3,000 m (KEPS Report, 2006, p. 29).

“The company is violating the provisions of Article 20 of the RK Law on Environmental Protection of 15 July 1997, No. 160-I (with later amendments and revisions), which requires resource users ‘to comply with the prescribed ecological regulations and ecological requirements with regard to economic and other activities.’ Actual emissions of pollutants into the atmosphere by the company in the zone where the KOGCF is situated exceeded the ecological guideline in 2004 by 331 percent and in 2005 by 282 percent. Actual discharges by the company exceeded authorized amounts in 2004 by 267 percent and in 2005 by 540 percent. Actual amounts of waste disposal by the company exceeded authorized amounts in 2004 by 580 percent and in 2005 by 1600 percent” (KEPS Report, 2006, p. 28).

“A discrepancy was found between actual atmospheric monitoring data in the field and the baseline pollution of the atmosphere. In the vast majority of cases the baseline concentrations determined for the KOGCF area by RGP Kazgidromet [Kazakhstan Hydrometeorological Service, a republic state enterprise] of the RK Ministry of Environmental Protection for all parameters and over many years of observation turn out to be higher than on the SPZ boundary, which leads to the absurd conclusion that the production operations of one of the largest companies in the country’s oil and gas sector have a positive impact on the environment” (KEPS Report, pp. 29-30). KEPS thereby casts doubt on the reliability of the data from the operational monitoring of KPO.

“In violation of regulations (GOST 17.2.3.01-86, RD 52.04.186-89) the company discontinued flare observations in the KOGCF, while in 2004 alone 225.2 million cu.m. of gas was burned and 56,600 tons of pollutants were released into the atmosphere – 3.3 times more than the prescribed ecological guideline” (KEPS Report, 2006, p. 30);

“In violation of Article 27 of the RK Law on the Protection of the Air of 11 March 2002, No. 302-II (with later amendments and revisions) the company is not taking the proper measures to prevent and eliminate accidental emissions, which in 2003-2005 led to significant above-guideline burning of casinghead gas and emissions of pollutants” (KEPS Report, 2006, p. 30).

“In violation of Article 9 of the RK Law on the Protection of the Air of 11 March 2002, No. 302-II (with later amendments and revisions) the company’s air-protection programs were not submitted for discussion by citizens and public organizations in order to take account of their suggestions in the planning and implementation of measures to improve air quality” (KEPS Report, 2006, p. 30).

“The draft guidelines on maximum permissible emissions for the KOGCF for 2006-2008 were prepared in violation of regulations … with modeling that assumed wind direction in at all times from the communities situated at various distances along the KOGCF perimeter toward the center (!) of the field, which improperly lowers possible concentrations of pollutants” (KEPS Report, 2006, pp. 28-29).

“Environmental-protection measures have not been implemented for a number of years (KEPS Report, 2006, p. 30).

“The company is violating its own statements and declarations regarding environmental protection” and “has disseminated questionable information to the effect that more than US $100 million has been invested in environmental-protection measures in the past three years” (KEPS Report, 2006, p. 31).

For more detail see the report by the public ecological panel of experts.

Based on the results of the public ecological experts’ review, the RK President has issued an order to the country’s relevant ministries and agencies to conduct an investigation and punish the individuals responsible for the violation of environmental protection law (Directive of the RK President No. 1078 of 27.02.2007).

The foregoing facts attest that the KPO company has been, systematically and for a prolonged period of time, violating a whole host of provisions of international conventions and Republic of Kazakhstan environmental protection law, endangering the lives and health of local residents, creating through its activities a risk of emergencies and violating citizens’ rights to a favorable environment. This validates the legitimacy of the demands by the residents of the village of Berezovka that they be relocated out of the zone that is hazardous to health and life.

5. To resolve this issues, the residents of Berezovka have taken the following actions:

Since 2002 the residents of Berezovka have been trying unsuccessfully to protect their rights to live in a healthy environment. The details of appeals and actions by the residents of Berezovka are in the article “An Oil Democracy, or the Story of Berezovka” (Green Salvation Herald 2006, pp.82-95).

At the national level, however, the residents of Berezovka have been unable to achieve a positive resolution of the relocation issue due to the inconsistent actions of the country’s state agencies, which on the one hand recognize the Karachaganak field as an especially hazardous facility but on the other hand reduce the size of the SPZ around it. Whereas in 2002 the RK Ministry of Environmental Protection was in favor of resettling the residents of Berezovka, after the reduction of the SPZ it no longer saw any grounds for this (Letters No. 02-05-09/1639 of 29.05.2002 and No. 2-2-1-35/k/E-16 of 21.05.2005). In 2006 the ministry again changed its attitude toward the problem and, as in 2002, endorsed the idea of relocation (www.kz-today.kz, 17.05.2006). This inconsistency stems from the fact that officials do not follow the letter of the law but orient themselves by the domestic political atmosphere and the establishment’s attitude toward foreign companies. In the current situation KPO treats the residents of Berezovka in the manner that the authorities “allow.” The company easily ignores the country’s laws and international conventions, covering itself with its “special” relationship with the Kazakhstan leadership. The rights of the residents of Berezovka continue to be violated. Therefore the residents have decided to appeal to an international, independent body to solve the problem.

In September 2004 the residents of Berezovka filed a complaint with the IFC office of the ombudsman (CAO), which raised the problems of KPO’s impact on the health and economic well-being of the residents of Berezovka, as well as the illegality of the reduction of the SPZ.

The ombudsman responded promptly to the complaint. Meetings were held with the local residents and with the company management. In April 2005 a report on the results of the consideration of the complaint was published. Although the report acknowledged “that KPO is operating in compliance with IFC standards and claims to adhere to international best practices,” the ombudsman cited insufficient transparency in the operations of KPO and, in effect, acknowledged the company’s violation of the right of local residents to have access to information on the results of medical studies and the justification of the revision in the dimensions of the SPZ (Report by the ombudsman CAO, 19.04.2005, pp. 11-12, 19). The 2005 CAO report does not address the main problem – the violation of the rights of Berezovka residents to live in a favorable environment. The propriety of the reduction of the SPZ was not analyzed (Report by the ombudsman CAO, 19.04.2005, pp. 17-19). Subsequent proposals by representatives of the CAO to the residents of Berezovka that they participate in KPO initiatives to cooperate with village soviets and jointly monitor air quality did not meet with understanding or support from the residents of Berezovka, since they failed to resolve the main issue of relocation (Letters from CAO Kate Kopischke dated 26.06.2006 and Meg Taylor dated 29.08.2006). For more detail, see article “An Oil Democracy, or the Story of Berezovka” (Green Salvation Herald 2006, pp.88-90). In August 2006 the ombudsman closed consideration of the complaint and turned it over to the CAO to assess the advisability of conducting an audit (http://www.cao-ombudsman.org/html-english/complaint_karachaganak.htm). Right up to this moment the residents of Berezovka do not know the results of this assessment.

Therefore, based on the newly discovered circumstances and new violations by KPO of the provisions of international conventions and Republic of Kazakhstan environmental protection law, which were cited above and which confirm the fears of the residents of Berezovka as set forth

6. In order to solve the problems, the residents of Berezovka have maintained contact with the following individuals at the IFC and KPO:

Rashad Kaldany, Director, Oil, Gas, Mining and Chemicals Department
Rachel Kyte, IFC, Director, Environment and Social Development
Sabina Cosic, IFC
Rosa Orellana, IFC
Patricia Miller, IFC
Assaad J. Jabre, IFC, Vice President, Operations and Acting Executive Vice President
John Butler, IFC, Karachaganak Project Officer
Lubomir Varbanov, IFC, Senior Investment Specialist
Issak Sekeev, Outreach, КРО Paulo Campelli, General Director, KPO Cameron Crawford, Operations Director, KPO Jack Hinton, KIO (КРO)

7. In order to solve the problems, the residents of Berezovka have maintained contact with the following individuals at the CAO:

Meg Taylor, CAO
Henrik Linders, Senior Specialist, Compliance
Kate Kopischke, Specialist, Ombudsman’s office
Amar Inamdar, Senior Specialist, Ombudsman
Jacques Roussellier, Ombudsman’s office

8. In implementing the project, KPO has violated the following provisions of IFC policy and operating standards:

The International Finance Corporation Procedure for Environmental and Social Review of Projects, December 1998

11. IFC does not finance project activities that would contravene country obligations under relevant international environmental treaties and agreements, as identified during the EA.

The International Finance Corporation Operational Policies: Environmental Assessment. OP 4.01, October 1998

Adherence to international law:

3. The IFC does not finance project activities that would contravene such country obligations, as identified during the EA.
Pollution:

6. The Pollution Prevention and Abatement Handbook describes pollution prevention and abatement measures and emission levels that are normally acceptable to the IFC. The EA report must provide full and detailed justification for the levels and approaches chosen for the particular project or site.
Public Consultation:

12. For all Category A and as appropriate for Category B projects during the EA process, the project sponsor consults project-affected groups and local nongovernmental organizations (NGOs) about the project’s environmental aspects and takes their views into account. In addition, the project sponsor consults with such groups throughout project implementation, as necessary to address EA related issues that affect them.

Disclosure:

15. For meaningful consultations between the project sponsor and project-affected groups and local NGOs on all Category A and as appropriate for Category B, the project sponsor provides relevant material in a timely manner prior to consultation and in a form and language that are understandable and accessible to the groups being consulted.

The World Bank Operational Manual Operational Policies, OP 4.00, July 2005

Operational Principle 2: Assess potential impacts of the proposed project on physical, biological, socio-economic and physical cultural resources, including transboundary and global concerns, and potential impacts on human health and safety.

Operational Principle 3: Assess the adequacy of the applicable legal and institutional framework, including applicable international environmental agreements, and confirm that they provide that the cooperating government does not finance project activities that would contravene such international obligations.

By failing to comply with IFC policy and standards, KPO is not only endangering the lives and health of local residents and creating the risk of emergencies, but is also damaging the image of the International Finance Corporation. The IFC, in turn, by financing this project, is in effect turning a blind eye to the many years of violations of the human rights of the residents of Berezovka and undermining public confidence in its own statements, policy and standards.

9. The residents of Berezovka expect that the following decision will be issued in response to this complaint:

The International Finance Corporation, together with the KPO company and the Republic of Kazakhstan authorities, will provide assistance in resolving the issue of moving the residents of the village of Berezovka to a safe location.

Copies of all of the letters, materials and RK legal statutes cited in the complaint, including copies of the appeal by the residents of the village of Berezovka dated 3 April 2007 and the power of attorney dated 8 November 2006, are enclosed.

At the request of the residents of the village of Berezovka, these materials are being sent to the representative office of the European Union in the Republic of Kazakhstan in connection
with the participation of European companies in the consortium Karachaganak Petroleum Operating B.V.

Date: 11 April 2007

Signatures:

Sergei Kuratov,
chairman of the Green Salvation ES

Svetlana Katorcha,
attorney for the Green Salvation ES

Sergei Solyanik
vice-chairman of the Green Salvation ES
responsible for the complaint to the CAO

Green Salvation Ecological Society
ul. Shagabutdinova, 58, Apt. 28
Almaty, Kazakhstan 050000
phone/fax (3272) 536256

Details: AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Greensalvation

Архив рубрики: Human Rights

UN declares access to clean and healthy environment a universal human right

Urgent action needed

A resolution for the whole planet

A victory five decades in the making

Triple crisis response

Summary of Lawsuits in 2019 by the Ecological Society Green Salvation*

Violation of human rights to a healthy and favourable for wellbeing environment in Kazakhstan

DANGEROUS WORK

Appeal Regarding the Emergency Situation in the Village of Berezovka

Sinkholes Appear in and Around the Village of Berezovka Near the Karachaganak Field in Kazakhstan

Almaty: a veterinary laboratory is being built with severe violations of law

The People have Taken a Partial Step towards Victory

Lawsuit on the Government’s Failure to Act: A Complaint has been Submitted!

For the first time, a court in the Republic of Kazakhstan has agreed to review a lawsuit from the public against the government for its failure to act

Supreme Court of the Republic of Kazakhstan – Decree of the Court No. 4GP-64-08

Letter from Office of the Compliance advisor/Ombudsman

AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA

Appeal of Kazakhstani and American NGOs to the World Bank

Complaint to Compliance Advisor/Ombudsman International Finance Corporation

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