19 May 2022 – Online conversation
The debate was organized by Professor Sanja Savčić, Novi Sad Faculty of Law, researcher of the Central European Professor’s Network.
The debate that was planned and organized as a dissemination event of the research carried out within the framework of the Central European Professors’ Network coordinated by the University of Miskolc gathered students of Environmental Law Clinic (more than 30 participants) to discuss various relevant issues concerning environmental protection and protection of future generations. This debate focused on right to information of environmental matters.
Students were prepared their presentations through three groups and afterwards exchange results of their research.
Professor Savčić open the debate:
Good afternoon, dear colleagues,Today, I have an honor to open discussion on matters regarding the environmental protection.This event was organized as a part of the Central European Professors’ Network, coordinated by University of Miskolc, Central European Academy.Participants are students of University of Novi Sad, Faculty of Law, who are members of Environmental Law Clinic, at Faculty of Law of Novi Sad.Please, let me intoduce them. Grlica Golusin, Andrea Sirocka, Dragomir Djukic, Jovan Srdanov, Damjan Miskov and Milic Perkovic.
I will give a short introduction to this event.
Human being of the modern society has not only adapted nature to his needs, but he has created an environment to his perception. This achievement has endangered the natural values: water, air, food, for present and for future generations.
For this reason, nowadays challenge is to find a balance between nature and human. Modern living conditions, growth of population, increasing use of limited resources and numerous environmental problems have confronted us with the issue of sustainable development and the need to act globally to preserve the planet, to enable life for present and future generations.
Environmental protection has been recognized as a task of the highest law in Serbia. In that sense, Constitutional act has three types of provisions which are of importance for this matter.
First one is the provision on right to healthy environment. Art 74 of Constitution Act of the Republic of Serbia named Healthy Environment – provides that Everyone shall have the right to healthy environment and the right to timely and full information about the state of environment. Everyone, especially the Republic of Serbia and provinces, shall be accountable for the protection of environment. Everyone shall be obliged to preserve and improve the environment.
Second type of provisions put healthy environment as a reason for restriction of some other rights.
Finally, determination of the competence for the issue of the protection of the environment is provided by the Constitution Act as well. Constitution provides that everyone shall be obliged to preserve and improve the environment, but the Republic of Serbia and provinces are accountable, for the protection of the environment (Art. 74(2)).
Protection is regulated by numerous laws and bylaws, within all legal areas. According to the official data, there are 17 laws and over 270 bylaws relevant for the environmental protection. Even these regulations cover different sectors of commerce and life, the Law on Environmental Protection could be realized as the general law, at least because it consists principles of environmental protection.
According to the legal principle ignoratio iuris nocet, no one could excuse himself for wrong doing by the fact that he or she was not knowledged about permitted or forbidden activity. From the other side, in order to involve everyone in environmental protection, it is needed to provide relevant information, not just regarding the legal framework, but regarding the environmental conditions as well. For this reason, question is following: Is the right to information of environmental matters overregulated or underregulated? And, in addition: how much could we expected in this matter from actual legal framework?
We could agree that students’ approach to these questions could be of great importance and therefore, I am going to give them an opportunity to express it.
Let’s start with our young colleague, Grlica Golusin.
Grlica Golušin and Dragomir Djukić:
As we all are aware, Environmental protection represents the practice of protecting the natural environment by individuals, organizations and governments. It is not a certain sort of action or specific science or a belief. Furthermore, it represents the demand that the totality of human action has to be adjusted to the best interest of our natural resources and existing natural environment, and if possible repair damage and reverse trends.
Within the Environmental law clinic we put special focus on legal mechanisms of protecting the environment and today we would like to present to you the environmental law of Serbia from several aspects that we consider important.
Firstly, we would like to point out the importance of simply being informed. It seems that we have never been surrendered by all different sorts of media, but we still so often miss to receive key information related to topics of vital importance to us, such as environmental protection. Therefore, the access to environmental information has been now proclaimed by law, on international and national level.
As we move on, my colleagues will discuss this question more from aspects of civil protection and criminal law.
Addressing environmental challenges requires dialogue and consultation between countries, as well as within countries between a large number of stakeholders. But in order to participate, an individual has to be able to access certain information. Public participation and access to information of public importance is essential for the realization and unhindered enjoyment of basic human rights. Therefore, regarding the right to access environmental information, I would like to address two different but intertwined areas: its place in legislation and the implementation of this right.
Convention on Access to Information, Public Participation in Decision-making and the right to legal protection in environmental matters (Aarhus Convention) is one of the most important acts in the field of environmental law. It was adopted on June 25, 1998 at the Ministerial Conference „Environment for Europe ”, held in the city of Aarhus (Denmark), under the auspices of the United Nations Economic Commission for Europe . Serbia ratified the convention in 2009.
- the right of everyone to receive environmental information that is held by public authorities
- the right to participate in environmental decision-making.
- the right to review procedures and to challenge public decisions that have been made without respecting the two aforementioned rights or environmental law in general.
The Convention on Environmental Impact Assessment in a Transboundary Context (informally called the Espoo Convention) is a United Nations Economic Commission for Europe (UNECE) convention signed in Espoo, Finland, in 1991 that entered into force in 1997. and the Protocol on Strategic Impact Assessment guarantees the widest possible involvement of the public in the process of strategic assessments, including the decision-making phase on implementation and deciding on if impact assessments are needed and the most appropriate ways to inform the public about the procedure- via electronic media. Directive on public access to environmental information – provides the right to access information held by public authorities and sets the basic preconditions for enjoying the right of access to information, as provided by the Aarhus Convention.
According to the National Program for the Adoption of the EU legal acquies „This Directive has been transposed into the legal system of the Republic of Serbia through the Law on Environmental Protection, the Law on Ratification of the Aarhus Convention, Law on Ratification of the PRTR Protocol, Law on Free Access to Information of Public importance and Law on Personal Data Protection.
Article 74 of the Constitution of the Republic of Serbia provides that everyone has the right to a healthy environment and full and timely notification of its condition.
One of the principles proclaimed by the Law on environmental protection, as the umbrella law in this area, is the principle of information and public participation. Following this principle, in exercising the right to a healthy environment, everyone has the right to be informed about the state of the environment and to participate in the process of making decisions whose implementation could affect the environment.
The importance of the right to access environmental information is especially visible when it comes to impact assessment and strategic impact assessment that I’ve mentioned before. The Impact Assessment Directive has been transposed in the Republic of Serbia through Law on Environmental Impact Assessment in 2004 and The Law on Strategic Environmental Assessment of 2004. An important purpose of impact assessment and strategic impact assessment procedures is to encourage public participation in decision-making, increasing transparency in the process of decision-making. One of the principles proclaimed by Law on strategic environmental assessment is the principle of publicity. It is envisaged in article 19: Before submitting a request for approval of a strategic assessment report, the body responsible for preparing the plan and program must ensure public participation in the review of the strategic assessment report.
But the special problem is the final phase of the impact assessment and strategic assessment process, when the competent authorities in practice often fail to inform the public about the results of consultations, so that the whole procedure becomes irregular. The practice of not publishing reports from public hearings also follows the process of drafting legal regulations. Although the Government adopted new Rules of Procedure in 2013, which improved public hearing procedures and provided an impact analysis of regulations prior to their adoption, these procedures have not been fully implemented in practice.
The European Commission’s reports on the progress of the Republic of Serbia in the process of European integration confirm the high degree of harmonization of legislation in the field of environment with the EU legal acquies. However, some aspects of the implementation of regulations indicate that it is necessary to make additional efforts to bring the adopted standards into practice, especially in the field of public participation in policy making and decision-making. In the Progress Report In the process of European integration in 2012, the European Commission points out the lack of transparency in the process of drafting regulations, as well as insufficient time for effective consultations with stakeholders. The same report states that although full compliance has been achieved with the The Impact Assessment Directive , its implementation must be improved, especially in the process of public consultation and dialogue with civil society. Similar conclusions are contained in the 2013 Report, which highlights the problem of adopting laws under the urgent procedure indicating the need for increased transparency in the process of drafting regulations and consultations with stakeholders, which would make the legal environment more predictable.
In order to highlight the main issue we are facing, I would like to go back from where I began – Archuus Convention. For the purpose of implementing this Convention, Aarhus centers were established. Aarhus Centers assist governments in implementing the Aarhus Convention and help citizens understand and exercise their rights guaranteed by the Convention. In Serbia, according to their website, there are five centers and their aim is building and facilitating the process of participatory local governance and promoting dialogue on environmental issues.
For us from the Environmental law clinic, a facility like this is very important and we would most definitely visit it, if the one in Novi Sad wasn’t closed. Of course, this is not the only organization, but it would be optimal if there was a source, accessible to the general public that provides correct environmental information and makes sure that it reaches its addresants. The average person is often not acquainted with the norms of the law and is not even aware of its rights, therefore, it is necessary that civil organizations, governmental and non-governmental, work harder on educating the people and raising awareness of the importance of the environment, and thus the importance of their participation in the process of its protection.
Andrea Širočka and Milić Perković:
Environmental law is one of the new, synthetic branches of law, which consists of elements from public law as well as private law having being protected using means of private law as well as public law ( Criminal law, administrative law). Protection in the form of liability appears in the case of endangerment and environmental pollution and that liability is a part of public law in its nature seeing as though it threatens society as a whole. Civil liability is often connected to the consequences which befall specific legal entities and people and at its core is a type of liability for secondary consequences of pollution. This dichotomy of liability of environmental pollution can be found in a law that regulates environmental protection, which holds accountable people that have caused harm to the environment and urges them to, without delay, use certain means to reduce the damages caused, remove any further risks ( dangers) and salvage what is possible. If the damaged property cant be salvaged, the person responsible should compensate the state for the damages caused, and in doing so we can see the public law side of things. Nonetheless, an individual compensation is also required for the people directly harmed ( private law side of things). Liability for the damaged caused is objective, no blame is needed for its existence.
Preventing Environmental pollution and removing any damaging consequences are achieved through various methods. In our law, those methods are provided in the norms of obligational law and stuff law(?).
The law which regulates basic property relations, allows the owner of immobility to ask the owner of the neighbouring immobility, in case of harmful emissions, to remove the cause of the emissions. In case the owner of the immobility suffered damages(smoke, noise, foul smells), he is entitled to compensation. The right to ask to remove the cause of emissions belongs also to the person who has immobility in its possession, according to the laws put into place concerning the protection of possesions. He will achieve that right either through a negatory lawsuit whose aim is to stop the harassment caused by another person or a possession lawsuit. The whole point of these legal mechanisms is to, firstly protect individual interests and goods and indirectly by doing so we protect the environment seeing as though the usual harassment is caused by emissions which are harmful to the environment( through smoke we pollute the air and negatively impact the flora and the fauna, also through the polluted water we contaminate the ground)
Having said that, the state of rapid technical and technological development, traditional methods mentioned here, and regulated by The law of basic ownership relationships are simply not sufficient anymore in those moments where the emissions can cause damages of a huge magnitude, damages that affect the population more than an individual. End result of their ineptitude and ever growing environmental endangerment is the creation of a new type of lawsuit( popular lawsuit), a lawsuit that is based on the liability of ecological damages that may happen. The law of obligations, written In 1978 did exactly that, it provided a right to any person to ask the possessor of the root of endangerment to remove it and also take action to prevent further harassment and damages, and if that is not possible, to withhold doing the particular action. The norm created an ecological lawsuit where the defendant can no longer only be held accountable for imissions but also emissions, prevention is the key with this lawsuit and the prosecutor is not just an owner of neighboring immobility anymore but rather any interested person.
Even with all the important characteristics that are found in an ecological lawsuit( its preventive or popular nature), its impact in the real world leaves a lot to be desired. We consulted professors and experts in the field and we found that even though it originated back in 1978. Action populates found no real use in practice in the way it was first intended. It was used as a way to protect personal interests(private lawsuit). The reason for this is probably visible in two causes. The first is that the public, even organizations pertaining to the preservation of the environment, are not well informed of the existence of this lawsuit in its original, intended manner. Furthermore, we cannot escape the fact that the citizens of our country do not have conscious state of mind to protect public interest and by doing so, protecting the environment. Judicial procedure is also long and expensive for anybody to see it through. We can expect this lawsuit to find its success if its filed not by a natural person but by the aforementioned organisations, however they face numerous challenges, from the lack of funding to the limited capacity of human resources. The strengthening of the human conscience and knowledge of the topic of environmental protection are conditions that are necessary for effective use of this legal mechanism.
Secondly, Our other laws are not well equipped to use this lawsuit to its full potential ( as a popular lawsuit). This can be seen through the shortcomings illustrated in Material law and procedure law.
Anybody can demand from another person to remove a source of danger from which considerable damages come from, to either him or any number of people, as well as sustain form action that causes damages or harassment, if those damages or the source cant be prevented with adequate methods.
The danger of damages cannot be abstract. The prosecutor must prove that the circumstances point to the fact that those damages are real, serious and inevitable. The problem is that those criteria are legal standards that are left to the court to analyse and form them in accordance to the case given. Judicial practice in two particular cases led to two very different outcomes. In one case the court found It reasonable that immobility being built can be a source of danger, however, another court in a similar case found that we cannot look at immobility being built as a source of danger because the danger it presents is not inevitable nor real. The second case was criticised, rightfully so. If the point of an ecological lawsuit is prevention then we should not let it come to the occurrence of damage. The danger is evident if according to the particular case we cannot exclude the possibility of the damages coming to realization.
A similar problem is encountered if we look at the concept of meaningful damage which is required for this lawsuit to be successful. Keeping in mind that the object we are trying to protect with this lawsuit is the environment, and that damages caused to it can lead to even more unimaginable consequences, all that in accordance with the principles of prevention and caution we should be of the thought that ANY damage to the environment is meaningful.
Deficiencies in procedural law are largely the reason for the ineffective use of this lawsuit as popular.
The first problem we face is that on one end we have the popular lawsuit which is aimed at protecting collective interest and on the other end is the strictly individualistic procedure which, using private lawsuits, protects individual, singular interest, and subjective rights. That strictly individualistic concept of the procedure is incorporated in a sequence of principles and rules, for example in active procedular identification, but also in effect of the verdict. Active procedular identification is required on the side of the prosecutor as a requirement to even be able to start the procedure, and it implies that prosecutor’s right or interest which he is aiming to protect in the procedure is indirectly and specifically endangered. However, actio popularis, which is our ecological lawsuit, implies that the person who is using it in the role of prosecutor doesn’t have his rights and interests directly and specifficaly endangered, which furthermore is procedural interference. as shown, principles and rules of procedure don’t allow usage of the ecological lawsuit as popular lawsuit because it does not meet requests in regards to the direct interest of prosecutor and active procedular identification. In doctrine, there are two ways to resolve this problem. First, of course, being the introduction of a new type of procedure specially created for the protection of collective interests through the popular lawsuit. The second solution is extensive interpretation of active identification and endangerment of the prosecutor’s interests, where it will be considered that even a person whose interests are not directly endangered can use an environmental lawsuit because their interests are actually indirectly endangered due to the environment being endangered.
With the ecological lawsuit, it is intended that one person protects the interest of a many number of people, however, the given verdict affects the prosecutor and the accused, not every person whose interest needs protecting. In an executive procedure, only the accuser is noted on the judgment that needs executing. The whole concept of an ecological lawsuit is then flawed. If the idea is that anybody can file a lawsuit then it would be logical and necessary that anybody can request execution of the granted verdict.
In connection to this, the question arises as to when such a rejection verdict is binding if the prosecutor’s claim is rejected. Whether only the prosecutor or all persons in whose interest the lawsuit was filed, but who did not participate in the procedure. The first solution is that one who belongs to an indefinite circle of persons who were threatened with damage, and did not participate in the lawsuit, can file a lawsuit against the defendant, adhering to the rule that the verdict binds only the parties to the proceedings. However, that would expose the defendant to potentially endless lawsuits about the same thing.
The second solution is that the verdict applies to everyone interested in initiating a lawsuit, even though they did not participate in it. However, this decision is too strict for members of an indefinite number of persons who are threatened with harm because the prosecutor could have filed the lawsuit without their knowledge or against their will. It is therefore proposed to allow others to initiate proceedings against the same defendant with the same request if they make it probable that the prosecutor handled the dispute poorly, however, this requires amendments to our bill that regulates litigation procedure. It would be useful to legislate that the field environmental lawsuits must be published in the media with the invitation of all interested persons to join the prosecutor. This would, on the one hand, increase the chances of success of the lawsuit, and on the other hand, reduce the number of those who could initiate proceedings against the defendant in the event of a rejection verdict. All this points to the conclusion that a special litigation procedure should be regulated for the protection of collective interests.
A specially important question in regards to the usefulness of the lawsuit are costs. The costs for the prosecutor to go through with this type of procedure are so high that, even if he has heard of the lawsuit he wouldn’t dare go up against a usually more affluent opponent. Those costs regard the payment of experts in a specific field who are vital to the success of the procedure. Taking all this into account we should look into giving the accusers a free pass for the costs of an ecological lawsuit
We should also mention that we found out that the judges here in Serbia are not well versed in this matter which is why we, aside from changing procedure, recommend the education of judges on the importance of the environment and their role in protecting it, as well as implementing more experts in this field.
Jovan Srdanov and Damjan Miškov:
There is a specific reason why we have left protection of the environment through criminal law for the very end. This way of protection represents ultima ratio, the last solution we can rely on. There are certain reasons for this, which are related to the characteristics of the criminal procedure itself as well as the effect that could be achieved by punishment.
The effect of punishment in criminal law is the correction of the perpetrator, while our priority is protection and cessation of environmental damage.
What is problematic regarding the characteristics of the criminal procedure itself, is the length of its duration, which after a number of years can lead to the punishment of the perpetrator, but then the environment is already damaged.
Our colleagues previously tried to point out certain problems in the criminal law protection of the environment. After a number of years, we came to a similar result, which is bad because the number of incriminations has increased, technology has advanced and we are still in a situation where we have almost the same number of convicts as in the past 4 decades (which is extremely small and almost non-existent for some crimes) but with the existence of evident facts that indicate pollution and perhaps even greater than in previous years.
We will try to point out the problems that affect such statistics. Based on insights into statistics, we can conclude the following: the number of convicted persons in the past 11 years is about 200 for crimes in which it is easy to prove intent, those are: crimes of illegal hunting, fishing and deforestation, while convicted persons for other crimes is only 10 people in the past 11 years.
The problem is the way of incriminating certain actions, where due to inadequately prescribed intent in incrimination, we come to a situation where a higher punishment cannot be prescribed.
An example is illegal fishing, where a number of ways of destroying the fish world are envisaged as an act of a criminal offense, but all related to destruction and not theft as a common reason for committing crime. Precisely because of the lack of intent (the highest degree of guilt) to destroy the fish world, but the intent related to theft, we come to a situation of giving up criminal prosecution due to lack of evidence or at least resorting to lesser punishments.
Also, in other criminal acts, such as air or water pollution, it is very difficult to prove the existence of intent, which leads to less punishment. As a result of this, the highest prescribed punishment that occurs is 8 years for certain crimes, which weakens general prevention.
The problem is also the abstractness of the terms mentioned in the description of the crime, for example: “to a greater extent” or “in a wider area”, “the destruction of large-scale flora and fauna”, “for a long time”, etc. We can notice a lack of objective criteria for determining these terms as well as a lack of court practice on the interpretation of these terms, due to a a small number of convictions.
Due to everything aforementioned, our opinion stands on that environmental protection cannot be implemented with the aim of punishment through criminal law, but we think that criminal law can be used at the level of general prevention, prescribing heavier prison sentences and higher fines in a specific amount.
Since today’s topic is related to the right to information, we believe that it is not sufficiently implemented through criminal law, because the best way to inform the public would be through publishing verdicts, which would make people aware of the perpetrators and their criminal acts.
