Chapter 12: Romania
BARNA BARTHA
One of the major weaknesses of the constitution is that it does not grant the right to a healthy environment which is a basic human right. This gap is covered by the Article 5 of the Environmental Protection Law which says: "The state recognizes the right of all persons to a healthy environment..." This provision is very important, not only because it definitely provides this fundamental environmental right, but it also has an international dimension guaranteeing the right to all persons, including foreigners.
When speaking of fundamental environmental (human) rights, it is crucial to highlight some "additional" rights which are provided by the constitution, such as: the right to life and to physical and psychic integrity (Article 22.1); the right to protection of health (Article 33); and as a general rule, the obligation of the state for the restoration and protection of the environment, and maintenance of ecological balance (Article 134/2, Paragraph F).
A specific right of access to environmental information (Article 5, Environmental Protection Law) provides that the state acknowledges the right to a healthy environment for all, and guarantees,"access to information regarding the quality of the environment."
There is no specific law on access to or provision of information, or on access to general or environmental information. The problem of access to environmental information is to be analyzed under the Environmental Protection Law. In some cases, regulations were adopted such as the one on Environmental Impact Assessment implementing the Environmental Protection Law which contain provisions relating to access to environmental information.
The Environmental Protection Law does not provide any definition of environmental information. As mentioned above, the law refers to information regarding the quality of the environment. The provision is very broad and covers all information about the state and activities related to the environment. This can be seen if the meanings of the term "environment" are analyzed as given by the Environmental Protection Law in appendix No.1 as "the complex of natural conditions and elements of the Earth: air, water, soil and subsoil, all atmospheric layers, all organic and inorganic materials, as well as living beings, natural systems in interaction comprising the above listed elements, including the material and spiritual values."
Analyzing Article 5 (Paragraph C) of the Environmental Protection Law, which states - as a right of the public and NGOs - "the right of being consulted in decisionmaking regarding the development of environmental policies, legislation and regulations, the issuing of environmental agreements and permits, including territorial and urban planning.", it is obvious that the term "being consulted" is, first of all, conditioned by "being informed." Therefore, in addition to dealing with all types of financial and economical analysis, information about environmental quality covers administrative measures, monitoring data, the compliance schedule in the EIA procedure, environmental policies or legislation, rules on both central and local level, plans and strategies.
Conditions for Obtaining the Information
Although crucial, Article 5 of the Environmental Protection Law has a number of limitations attached to its implementation because this virtual right does not have the corresponding correlative obligations included in the regulations regarding the activities, duties and procedure of other decisionmaking bodies.
Thus, in the process of drafting legislation, parliament does not have obligations to actively spread information to citizens and NGOs. Identically, on the governmental level there is no obligation to actively offer information/or environmental information to citizens and NGOs. However, while the constitution declares that social organizations should be consulted on the government's activities, this provision is not an imperative that is often used in practice.
The Local Public Administrative Authorities, however, are entitled to provide information based on Article 31(1) from the constitution and, partly due to Article 1 of Law No. 68/91. The obligation to provide environmental information is incumbent upon the administrative bodies which have the responsibility for the environment; that is, to the Ministry of Waters, Forests and Environmental Protection and Environmental Protection Agencies. The importance of the concept of access to environmental information has been taken into consideration by the Environmental Protection Law. Therefore, Article 5, Paragraph A, of the Environmental Protection Law enunciates a provision which has the value of a principle: the state recognizes the right of all persons to a healthy environment, and to this end it guarantees: the access to information regarding environmental quality.
The situation is the same on the local level. The Law on Local Public Administration No. 69/1991, although recently amended by Governmental Ordinance No. 22/l997, does not contain specific provisions on active access to information.
Another limitation in the implementation of the access to information provisions contained in the Environmental Protection Law is that citizens and NGOs did not recognize the importance of these provisions and the fact that they are an excellent tool to promote and enforce public participation.
The adoption of the Environmental Protection Law reveals several new aspects concerning access to environmental information:
The Environmental Protection Law takes into consideration that the concept of access to environmental information is important and at the same time a separate legal institution. Therefore, Article 5, Paragraph A of the Environmental Protection Law enunciates a provision which has the value of a principle: the state recognizes the right of all persons to a healthy environment, and to this end, guarantees access to information regarding environmental quality.
A very important aspect of access to environmental information is that it is granted to any person in principle, not only to specific NGOs or ECOs. Access to environmental information is not conditioned to membership of any formal or informal body, nor does the citizen have to prove interest.
The responsibility for environmental protection, as mentioned above, is incumbent to the central environmental protection authority (the Ministry of Waters, Forests and Environmental Protection ) and its local agencies (the Environmental Protection Agencies). For pursuing this duty, it is obligatory for the Ministry of Waters, Forests and Environmental Protection according to Article 64 (Paragraph C) Environmental Protection Law" to create the functioning framework which shall allow the access to information and the participation in environmental decisionmaking policies, regulations, permitting procedures, territorial and urban development plans for the other central and local public administration authorities, of nongovernmental organizations and population."
The central and local public administration authorities are entitled to provide information including environmental information due to Article 31(1) of the constitution (cited above), and partly due to Article 1 of the Law on Local Public Administration No.69/1991. There are no private bodies which perform public services, all public services are performed by the state institution or administrative bodies.
The obligation of industry to provide information to the public is not circumscribed exactly by the Environmental Protection Law. Although industry has obligations to self-monitor and provide data to Ministry of Waters, Forests and Environmental Protection and the Environmental Protection Agencies, there is no obligation to provide information to the public. Industry, however, is obliged to provide information directly to the public in case of accidental pollution or major environmental accidents (Article 79, Paragraph F, Environmental Protection Law). The public can access this information indirectly, through the Ministry of Waters, Forests and Environmental Protection and the Environmental Protection Agencies.
A specific aspect of access to environmental information is provided by the Law on Waters (No. 107/1996), which contains provisions regarding public participation under Section 6, Article 77. According to these provisions, the public may be informed by publicity of the proposed measures in the local media about any measure undertaken by the Ministry of Waters, Forests and Environmental Protection or Romanian Rivers R.A. to protect rivers. The same information will also be transmitted to the riparian users and any other affected persons. A complete documentation detailing the planned measures will be available to the public as well.
The central and local public administrative bodies are obliged to provide the requested information within 30 days. This time frame is also considered the limit in cases of refusals or non-issuance of information.
There are some exemptions to this rule. Thus, in the EIA procedure (M.O.125/96), the applicant, together with the environmental authority who will issue the permit, should elaborate a time schedule for the public debate. This schedule could contain certain time limits for public access to information. It is possible that the public could enforce its position by asking and receiving reasonable time limits.
Due to provisions of the constitution and the Environmental Protection Law, the public interest for information, including environmental information, is granted to every person (erga omnes) - individuals, ad hoc groups, NGOs. In such cases, the requester does not need to prove an interest. As law uses the terms population and NGOs, there are no limitations.
Article 77, Paragraph 4 of the Law on Waters (No.107/1996) provides that comments and proposals for the planned measures should be transmitted to the holders of the documentation within 45 days of the date the measures were published in the local media.
Neither the constitution, the Environmental Protection Law nor other sectorial laws require specific forms to request information. Theoretically, the right to access to information applies to access to both information and documents. The legislation regarding the environment does not prescribe charges for access to information held by the responsible environmental bodies. Therefore, charges do not represent an obstacle. Identically, there are no specific cost requirements for access to information held by public authorities.
There are also no specific provisions regarding the form in which the information has to be provided. Unfortunately, at this time, the infrastructure is weak, and all the administrative bodies are not equipped with computers, copy machines. After all, it might simply be a question of how or in what form the public can request information but the conditions may not allow such requests to be satisfied anyway.
Refusal to Provide Information
Public administrative authorities are bound to provide accurate information to the public on issues of public and personal interest, according to the Environmental Protection Law. Due to this compulsory duty, public administration authorities cannot refuse to provide information, in general.
The main problem is that although public authorities do not refuse to provide information, they often do not comply with the time frame or do not offer relevant and complete information. In the terms of the law, this problem can be settled by using administrative procedure and issuing an appeal. There are, however, some exemptions.
The EIA Procedure (M.O. 125/l996 , Chapter 9, Article 9.9), provides a list of information which cannot be subject to the public debate. This contains the following: "confidential information/ business information, the publicity of which might cause economical damage; information which might compromise and/or delay in some way an initiated investment; information about the address and identity of a witness who has a justifiable fear for his/her safety; state secret information."
The Law on Waters (No.1o7/1996, Section 6, Article 77/1), includes as exemptions the obligation of the Ministry of Waters, Forests and Environmental Protection to take measures in case of emergencies. Thus, the water authority can take measures without/or before a public debate in case of drought, flood or other, "similar situations."
It is still a problem to define what is confidential information and what covers business or state secret information. However, the inclusion of protecting whistle blowers in the list of exemptions is a positive fact. Although a public interest test is possible in principle, there have been no such cases reported.
Informal Guidelines for Agencies and the Public
There are no general guidelines for the public authorities on how to provide information. There is however, a mandatory duty for the Ministry of Waters, Forests and Environmental Protection to create the framework for public participation (Article 64, Environmental Protection Law) and within this, guidelines may be worked out on how, when, and who will provide information during the public involvement. There are no general guidelines either, for the public on how to request general and/or environmental information. As a rule, the request might be forwarded in writing.
Specific Institutions/Officials to Provide Information
On the governmental level (central or local) there are public relations offices in the organizational schemes. Theoretically, these offices are in charge of providing information. The local public administration authorities, according to Article 75 (Paragraph D) of the Environmental Protection Law, has to "assure services with specialists of ecology and environmental protection, and collaborate towards this end with the competent environmental protection authorities."
There are examples of such offices or centers also at the local level. For example, the establishment of the Public Information Office in the Mayor's Office of Tirgu Mures, could be a good example of recognizing the significance of "openness" and the importance of democracy. However, the problem is that the personnel in charge of that office do not have any experience on how a public office should work, and do not even know that the local council has hired specialists in environmental problems.
The Ministry of Waters, Forests and Environmental Protection set up an Information and Documentation Center which is a separate organization - actually an NGO - providing general environmental information. The Center, however, does not have any official information. For example, it cannot provide information or copies of draft regulations or rules that the Ministry of Waters, Forests and Environmental Protection is working on. The Center acts more as a library; they can provide Romanian or international legislation on environmental issues, newsletters, and translations of the already existing laws or regulations. The officials of the Ministry of Waters, Forests and Environmental Protection have complained that NGOs do not request information from this office frequently.
The Ministry of Waters, Forests and Environmental Protection will, in the near future, install an electronic information base. Information will be available via Internet/e-mail. To date, it is not clear what kind of information will be available to the public and NGOs.
The Ministry of Waters, Forests and Environmental Protection intends to organize periodic meetings for the representatives of NGOs. During a roundtable discussion between the Ministry officials and NGOs on January 16, 1998, this issue was again raised. However, the frequency of these meetings is still not known. Due to financial reasons, a lack of organizational skills and low interest from both parties, these meetings have not been so far successful. Recently, the Ministry of Waters, Forests and Environmental Protection designated a person to be responsible for the relationship with NGOs.
However, there are no specific officials designated to provide information to the public or NGOs in the entire Ministry of Waters, Forests and Environmental Protection. Usually, the requests or complaints are transmitted to the inspector in charge of that certain environmental issue.
If an Authority Does Not Possess the Information
Normally, the public and environmental authorities respond to requests strictly according to their competence and the information they possess.
In cases where they do not possess the requested information, they often inform the applicant of the proper agency he/she can contact for further information.
The public administration authorities do not forward the request to other agencies as they do not have such a mandate.
Information Held in Public Registers
There are no registers in which information available for the public is held.
Costs of Obtaining Information
As the infrastructure is not developed, there are generally no adequate facilities for obtaining copies of information. The information is free of charge, but in some cases, there are no logistical possibilities to copy or disseminate the documents. (For example, it was not possible to copy the last draft of the Aarhus Convention due to lack of paper).
On the level of legislative power, there are no legal provisions which provide the obligation to actively disseminate general and/or environmental information. Public administration authorities are not obliged either, under the Law on Local Public Administration (No. 69/1991), to actively provide or disseminate information to the public.
The Environmental Protection Law includes two provisions which can be interpreted as an obligation for the Ministry of Waters, Forests and Environmental Protection and Environ-mental Protection Agencies (Environmental Protection Agencies) to provide information actively. According to this, the Ministry has to "create the functioning framework which shall allow the access to information and the participation in the environmental decision making...for other central and local public administration authorities of nongovernmental organizations and the population," and must "provide the interested parties with centralized data on the state of the environment, the central/local environmental protection policy and programs" (Article 64, Paragraph F and O).
Although the implementation of the above cited provisions might be crucial, the Ministry of Waters, Forests and Environmental Protection has done nothing so far concerning this obligation. Even if these provisions are, at first sight, very broad and generous, the public participation provisions cannot be enforced in practice without this framework.
In Article 64 (Paragraph O) of the Environmental Protection Law cited above, the Ministry of Waters, Forests and Environmental Protection and Environmental Protection Agencies has an obligation to provide information to the public. Due to the fact that the law does not specify what this obligation covers, the Ministry and the Environmental Protection Agencies are not accomplishing their information duties to an acceptable level. The public is not being adequately informed on environmental policies, strategies, etc.
In practice, the Environmental Protection Agencies inform the population, through the media, about the levels of pollution (air pollution, water pollution, etc.). The meetings organized by the Ministry of Waters, Forests and Environmental Protection for the NGOs seem to be formal. The representatives of the Ministry usually give a brief overview on the stages of the different drafts of the laws or regulations. Usually copies are not available for the public and there is no possibility to provide input.
There is an active provision of information in emergency cases. It is the responsibility of the Ministry of Waters, Forests and Environmental Protection and other natural or legal persons to inform the public, and organize prevention of catastrophes. According to the Environmental Protection Law, "the control of the nuclear activities shall be carried out by the central environmental protection authority (the Ministry of Waters, Forests and Environmental Protection) and by other competent authorities," and the Ministry is responsible also to "organize the monitoring of the environmental radioactivity at country level." (Article 32 and 32/a)
The responsibilities of natural and/or legal persons are also established in the Environmental Protection Law, which states, "The natural and legal persons who carry out activities in the nuclear field shall have the following obligations:
The implementation of these provisions are detailed in the national legislation of the principles of the Vienna Convention on Nuclear Security, ratified by Parliamentary Law No.43/1995.
Methods of Dissemination
In practice, the typical method used by the public authorities in disseminating information is through press releases detailing the agendas of the regular decisionmaking meetings (i.e. local councils). Press conferences are held on a regular basis.
Unfortunately, the public authorities do not publish up to date information on the state of the environment. Only the Ministry of Waters, Forests and Environmental Protection, the body responsible for the environment, has the obligation to submit a yearly report on the state of the environment. This report has to be published. The Ministry does not actively provide information regarding the possibilities for access to non-compliance mechanisms of international rules.
There are no specific groups who are informed regularly by the environmental authorities. The NGOs and citizens can have access to the newsletter of the Ministry of Waters, Forests and Environmental Protection or can apply to the Ministry to obtain copies of the laws and regulations .
There have been no examples reported which could be mentioned as good practice of active provision of information.
The single mechanism which might ensure the flow of information from the private sector to the responsible environmental authorities is the development of the self-monitoring system created by the reporting obligations of the industry. This mechanism is included in the Environmental Protection Law, prescribing obligations for the legal persons (the industry) to "assure their own supervision systems for technological installations and processes, and for the analysis and control of pollutants within the scope of the performed activities, and the recording of the results, for the purpose of preventing and avoiding technological risks and accidental pollutant discharges into the environment; and shall report the environmental supervision results to the competent environmental protection authority, on a monthly basis." In addition, they must "inform the competent authorities and the population in the case of accidental pollutant discharges into the environment or major accident." (Article 79, Paragraphs E-F)
Electronic Means of Dissemination
There is no obligation for public authorities to disseminate information electronically. The necessary infrastructure for this is also missing.
Nongovernmental Centers
There are a few environmental NGOs which provide environmental information and information on public participation beside their regular activities. These are as follows:
Several other NGOs disseminate specific environmental information relevant to their activities.
The Environmental Protection Law stipulates that the state recognizes that every person has "the right of association in organizations defending environmental quality." (Article 5, Paragraph B) This is of special importance because the law governing the formation of NGOs (associations) is still the old one (Law nr.21/1924) and its procedural provisions may cause difficulties in the process of forming and registering such organizations.
One way of implementing the principles and strategic elements of the Environmental Protection Law is contained in Article 4, Paragraph H which states the importance of "training and education of the population as well as the participation of nongovernmental organizations in the decisionmaking and implementation." Moreover, this direction of implementation is developed into a specific right. The State guarantees for the citizens and NGOs the right to participate and to be consulted in the decisionmaking processes in the Environmental Protection Law which contains "the right of being consulted in the decisionmaking regarding the development of environmental policies, legislation and regulations, the issuing of environmental agreements and permits, including for territorial and urban planning." Article 5, Paragraph C.
The legal texts cited above (Article 4, Paragraph H and Article 5, Paragraph B, C) are of great importance and conduct to the idea that the State and the legislators recognize the role of NGOs in a democratic society.
There is another provision in the Environmental Protection Law which relates to public participation. Article 64 states the prerogatives and responsibilities of the central environmental authority (the Ministry of Waters, Forests and Environmental Protection). As mentioned already above concerning the access to information rights, Paragraph C, Article 64 prescribes the creation of a functioning framework which shall allow the access to information and the participation in environmental decisionmaking - policies, regulations, permitting procedures, territorial and urban planning development plans - for the other central and local public administration authorities, of nongovernmental organizations and population." In a rather clear effort at decentralization, it is apparent that under this provision the framework will allow for an open decisionmaking process not only for NGOs and citizens but for other public administration bodies.
Under Paragraph P of Article 64, authorities are obliged "to consult periodically with nongovernmental organization representatives and with other representatives of the civil society to set up the general environmental strategy and to take decisions in cases which might affect the environment."
The EIA procedure (the Environmental Protection Law uses the term: permitting procedure) is governed by the provisions of Article 8-14 of the EPL. According to Article 12, the permitting procedure should be public: "The publicity of the projects and activities requiring agreement or permit and of the impact studies, as well as the public hearings shall be assured by the environmental protection authority." Article 11 provides all the steps for the EIA procedure and under Paragraph G stipulates as a mandatory duty of the process, "public notification and hearing of the report (EIR); the registration of the resulting comments and conclusions." Furthermore, Paragraph H of Article 11 requires that comments are to be made by the public and the final decision is to be made publicly, motivated on the basis of the report.
The implementation of Article 8-14 has been laid out in the EIA Order (M.O.125/1996) containing the procedure for EIA and those for the public debates. The Annex No.3 includes the detailed procedure for public debate. The scope, methods and minimum content of information to be provided by the applicant are all criteria in the decisionmaking.
Although the legal texts cited above (Article 64 Environmental Protection Law) are positive and offer the basis for public participation, there are limitations. The "functioning framework" for public participation is obviously a question of procedure. This framework/procedure should be worked out not only by the Ministry of Waters, Forests and Environmental Protection, but in cooperation with representatives of the NGO community. Otherwise, if a public participation procedure is elaborated unilaterally, the practical value of the principles of the whole law might be at a very low level. The main questions are of the actual implementation of the law and the exercising of substantial rights. From this point of view the law is not enforced.
On the contrary, the EIA procedure is worked out in a more detailed way and the public debate procedure gives a sufficient legal basis for improving public participation. The EIA procedure provides a broad field for NGOs to take actions. Experience shows that they also need to be more active to use the opportunities given by the EIA procedure.
On the public administration level, there are no specific legal provisions for public participation in environmental or related issues, neither on a central level (Government) nor on a local level (local councils). This is happening despite the fact that the Local Public Administration Law in Article 1 stipulates that the local authorities shall carry out their prerogatives according to the principles of democracy, decentralization and consultation of the population. On a local level, the environmental committees do not have specific legal requirements for public consultation.
There is a general right to referendum both on national (as stipulated by the constitution) and local levels (as stipulated in the Law on Local Public Administration no. 69/1991). As the law does not specify the issues on which referenda can be called, it could be used on environmental issues too.
Citizens acting on their own cannot initiate a referendum either on the national level or the on local level. After consultation with parliament, the president of Romania may make a motion for a public referendum on any given act on the national level. On a local level, the mayor can organize local referenda on a given issue. The referenda are not binding.
There is no specific provision regarding the issues on which referenda can be organized (environmental issues or otherwise) and there are no legal provisions which provide situations which compulsorily require their organization. There is also no procedure for referenda.
The only referendum organized in Romania on the national level was for the approval of the constitution in 1991. There has not been any information reported about referenda on environmental issues on the local level.
The constitution, however, directs parliament, under Article 72 (3) paragraph (c.), to enact an organic law regulating the organization and holding of referenda. This law has still not been adopted. This law would regulate the proceedings both on national and local levels. Since the procedures have not been established so far, the lack of this legal instrument can be considered a limitation for public participation.
Right to Initiative
The right to initiative on environmental or related issues has to be analyzed on three levels.
As mentioned above, the existing legal framework does not contain specific provisions relating to the issues which can be the subject of these initiatives nor for their specific procedures. Since the legislation is not complete, in principle any environmental issue can be subject to initiative. Due to the information attained, it can be said that public initiatives have not been used very often in practice.
Even if, under some circumstances, the public is allowed to participate in the decisionmaking process - mostly in the EIA procedure - the power of decision is with the body (Ministry of Waters, Forests and Environmental Protection or Environmental Protection Agencies) which has that particular duty and responsibility.
The public and NGOs have the subjective right to participate - in specific issues and according to specific procedures - but they do not have the right to vote or veto. This means that in the decisionmaking process, the public and NGOs are not entitled to take decisions. They are not regarded as partners, but participants.
The right to participate in environmental decisionmaking is granted erga omnes, that is to everyone, all individuals, ad hoc groups, NGOs. The public/NGOs does not have the right to vote. This right is quite often used in the practice of EIA procedure (the public debate).
Effective public participation procedural provisions are stipulated only in the EIA procedure: the public debate. According to this rule, NGOs and individuals are entitled to participate in terms of requesting information and forwarding their comments to the body which conducts the procedure (the Environmental Protection Agency). Before the final decision, the Environmental Protection Agency is obliged to analyze the comments and the results of the public debate (Pct.5 MO 125/96).
The analysis of the provisions included in the rule, leads us to say that the comments of the public have to be taken into serious consideration because the whole documentation of the public debate is available to all for consultation.
The MO 125/96 does not provide specifically that the decisionmaker is formally required to take public opinion into account. The economy of the legal text leads us to confirm that, though. The effectiveness of influencing the decisionmaking through this form of participation is conditioned by the willingness to appeal. Since there have not been many appeals, this is hard to evaluate.
The right to provide comments applies erga omnes, that is to everyone, there are no privileged groups. There is no procedure to define who can be consultees. It is hard to evaluate how effective the public participation is, because it depends on how often the public participates in the specific decisionmaking process.
The effectiveness of influencing decisionmaking through this form of participation is conditioned by the willingness to appeal. The limitation is if the decisionmaker fails to observe the public input. In such a case the public has the legal remedy of appeal at its disposal. There are no limitations or costs, and the time limit (30 days) to appeal is reasonable. Since there have not been many appeals, this is hard to evaluate.
There are no requirements which mandate the applicant to make special notification to the interested or affected parties. There are no groups which are privileged in the procedure, the EIA procedure for notification is made for the general public.
The information is published in the local newspaper. This notification is a minimum requirement, but the agency who conducts the permitting procedure can decide for more detailed information to be published. In practice and in most cases, the applicant accomplishes his/her minimum obligation - a short notice in the local newspaper.
At the recent initiative of the Ministry of Waters, Forests and Environmental Protection and the NGOs, recently, a new framework for cooperation is being discussed. The cooperation with the NGO community is to be extended through establishing working groups. Within the NGO community, three major working groups have been established so far:
The concept of cooperation with the working groups was discussed and agreed on at the meeting of NGOs and the Ministry of Waters, Forests and Environmental Protection held on January 9, 1998. The basis and conditions of cooperation, and the specific subject will be settled in the near future. The public participation working group, had a basic discussion with the secretary general of the ministry on January 15, 1998 and agreed to put the cooperation on a higher level. Thus, a memorandum of understanding is to be signed regarding cooperation on public participation which can facilitate the dialogue between them.
Openness of Parliamentary Committees
Environmental NGOs and individuals are allowed to participate in the sessions of parliament and/or parliamentary committees only if they are invited. It is quite difficult to obtain such invitation. In practice, it might happen that the parliamentary commission invite experts on specific issues. These experts have no right to participate in the process, they can only observe.
Until now there was no governmental funding specifically focused on public participation projects and/or training. With the participation of the Ministry of Waters, Forests and Environmental Protection the Public Participation Working Group and other NGOs, a meeting was organized on March 27, 1998. This was the first NGO meeting to be partly financed by the Ministry of Waters, Forests and Environmental Protection .
Aside from the constitution, the Environmental Protection Law also provides for legal standing in environmental issues. Thus, Article 5 (Paragraph D) states that, " The right to appeal directly or through some associations to administrative or judicial authorities in view of prevention or in case of direct or indirect damage occurrence." The Environmental Protection Law gives a special right to the NGOs to file a lawsuit ãwith the view of environmental conservation, irrespective of who suffered from the prejudice." (Article 86)
The law does not specify the types of actions for which legal standing is provided.
There have not been any court cases reported where constitutional rights have been used as arguments.
The general Romanian legislation (Article 1 of Law no. 29/1990 on Administrative Disputes Claims) provides that, "Any physical or legal person considering himself injured, either in his rights legally acknowledged by an administrative document or owing to the unjustified refusal of an administrative authority of solving the request on a legal right, may apply to the competent court in order to render the document void, to acknowledge the claims right and to compensate for the loss that was brought on him." Therefore, under this provision a person dissatisfied with an administrative decision or other document should apply first to the deciding administrative authority itself which has the opportunity to reconsider its decision. If the injury is to the person's rights and is, "legally acknowledged by an administrative document," he/she need not give the deciding authority an opportunity to reconsider.
Following an unsuccessful appeal to the administrative authority, the complainant may appeal to the court following the administrative procedure. The Environmental Protection Law provides that the administrative procedure should be followed in cases related to the permitting procedure: (Article 10/5, "Litigation generated by the issue, revision, or suspension of the environmental agreement or permit shall be settled according to the Law of the administrative disputed claims office").
The same administrative procedure should be followed in any environmental decisionmaking process.
As provided by the law, the average duration for obtaining a final administrative decision - issued by an administrative body - is 30 days. The time limit for appeal is 30 days after the issuance of the decision. These time limits apply both in cases of providing information and in other environmental administrative decisions. If this time limit is not complied with, the requester may appeal to the courts.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | x | x |
| interested/affected | x | x |
NGOs |
||
| everyone | x | x |
| interested/affected | x | x |
The Romanian judicial system does not have special administrative, civil or criminal courts. Within the court, there are administrative/civil/penal sections which are part of the system.
In the proceedings the following legal actions can be taken against the government in cases objecting to governmental decisions:
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | x | - | - | - | - |
| interested/affected | x | - | - | - | - |
NGOs |
|||||
| everyone | x | - | - | - | - |
| interested/affected | x | - | - | - | - |
These are as follows:
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | x | - | - | - |
| interested/affected | - | x | - | - | - |
NGOs |
|||||
| everyone | - | x | - | - | - |
| interested/affected | - | x | - | - | - |
It is not possible for individuals and NGOs to obtain interim or permanent injunctive relief against governmental decisions because a lawsuit against such decisions has to be drawn up. According to the administrative procedure, interim relief is conducted by the civil procedure.
in advance by the plaintiff, who is only entitled to recover the expenses if he wins the case. While the minimum monthly salary is about USD 50, the average is about USD 100.
The services of the lawyers are free for any clients and they do not receive other fees from donors either. There have been no reported cases when private lawyers concerned in environmental cases are providing such legal services.
