Chapter 13: Slovakia
PALO ZILINCIK
The empowerment of local governments is an important part of the public administration because this system allows solutions to local problems that are appropriate to the local needs. Moreover, the experience of governing many issues at the lowest level is important for the development of local democracy. This system of strong local government was a result of the political changes of 1989, but it might not last forever.
Currently there is discussion about amending the Law on the Municipal System. The draft of the amendment, prepared in 1997 by the Ministry of Interior, proposes a restriction on the independence of the local governments in the process of adopting local rules. Naturally, this amendment has faced criticism from local government representatives. They propose instead the creation of strong regional government entities, which currently do not exist in Slovakia, and further delegation of state power to the municipalities.
The Act on the Environment (No. 17/1992, Article 14) provides everyone with the right to true and accurate information on the state and development of the environment; the causes and consequences of such state; on information related to planned activities that might lead to changes in the state of the environment; and to information on measures taken by the bodies responsible for environmental protection to avoid or remedy the environmental damage. A special provision may set out those cases where providing information can be limited or refused.
Neither this act nor other legislation regulates practical arrangements for providing information, nor does it specify the process of appeal against an adverse decision, etc. Valid regulations on confidential information are constructed quite broadly and do not precisely specify the exceptions. Therefore, the practical effect of the right to access to information under the Act on the Environment is also limited.
The Nature and Landscape Protection Act (287/1994) requires nature protection authorities to register all important information related to the management and administration of nature and landscape protection, including decisions issued, permits, etc. This information is accessible to everybody during working hours at the offices of nature protection authorities. Access may be denied if the information concerns state, business or commercial secrets or the location of protected species. According to regulation concerning the particulars of access to information under this law (Regulation No. 295/1996), the time limit for a response to a request for information is two months.
According to the Act on Environmental Impact Assessment (127/1994), the letter of intent, the scope of the environmental impact assessment and its timetable as well as an assessment report including complete findings, description and evaluation of the assumed impacts of the proposed activity is available to be examined or copied at one's own expense through the local government or the Ministry of Environment. The Ministry of the Environment's final position on the proposal must also be delivered to the local government concerned and to any citizen initiative or citizen association which has participated in the EIA process. The local government must make the documents available in the usual manner employed and shall give notice of where and when they can be examined or copied.
The ministry is required to keep EIA records for a period of at least 15 years after termination of the EIA process. The ministry may provide information related to such documentation upon request, in compliance with the regulations governing state, economic, business and trade secrets (Article 38, Paragraph 1). After the completion of the EIA process, the applicant is entitled to stipulate that certain parts of the documentation, which have been prepared at his own cost, may be provided only with his approval and for a reasonable fee. (Article 38, Paragraph 2).
A proposal for a substantial development policy (especially in the area of energy supply, mining, industry, transport, agriculture, forestry and water management, waste management and tourism) and territorial planning documentation for the entire territory must contain an assessment from the point of view of its presumed impact on the environment. The proposal should be discussed with the Ministry of the Environment. The authority drawing up the proposal is required to inform the public in an appropriate way about the preparation of the policy at least two months before it is discussed with the Ministry of Environment. (Article 35).
Several other laws deal with access to information. In particular, the Administrative Procedure Act, Building Act and Act on State Administration of Water Management are important for NGOs and the public. These laws restrict access to information by requiring the person seeking information to demonstrate his qualified interest or entitlement to the information. Article 23 of the Administrative Procedure Act (No. 71/1967) is the most important. It stipulates that only parties to an administrative proceeding are entitled to examine the files on that proceeding. The administrative body may permit other persons to examine the files as well, but such persons must be able to prove their entitlement to the information.
In Slovakia, there are three basic problems in the field of access to environmental information:
Consequently, the public faces many problems when trying to obtain information. There are several categories of information which are the most problematic to access:
The majority of requests for these types of information are refused because of the "nonpublic character of the administrative procedure" and on the basis of trade and state secrets. Moreover, requests for many other types of important information have been refused (e.g. data from the water quality monitoring, requests for the organizational structure of the Ministry of Agriculture, etc.).
One of the few positive examples is the approach taken by some of the nature conservation authorities to provide information under the Act on Nature Protection. Clear provisions in this act create favorable conditions for access to information, including access to administrative decisions. The EIA Act contains clear provisions as well. However, gaining access to the EIA files at the Ministry of Environment using this act is sometimes more problematic, especially in "sensitive" cases related to the construction of highways and dams (the expert review of the EIS especially has sometimes been difficult to obtain). Information is also withheld sometimes on the basis of Article 38, Paragraph 2, which gives a developer the right to restrict access to part of the EIA documentation.
There is no a special law on access to environmental information in Slovakia. However, the draft of the Act on Access to Environmental Information is being discussed in parliament.
According to the draft, everyone would have the right to receive information about the environment without proving a legal or other interest or purpose for requesting the information. An evaluation of this draft legislation is presented in Box 1.
| BOX 1: Evaluation of the Draft Law on Access to Environmental Information |
|---|
The evaluation of this draft law is based on the text which has been proposed to parliament by the Slovak government in April 1998. Some changes can be expected during the parliamentary discussion. The draft law deals with the whole complex of issues usually related to the area of access to information, including definition of agencies obliged to provide information, practical arrangements, exceptions, judicial review, etc. The draft law creates conditions to reduce the almost limitless "trade secret" argument which has often been used improperly. The law also determines the active information obligation of polluters. On the other hand, the law maintains the tradition of a non-public character of administrative proceedings. The main criticism from the Slovak NGOs concerns determination of exceptions. For example, the current text of the exception "information that is the subject of unfinished administrative proceedings" means that all cases in which there is still decision to be made by a public authority are excluded from the right of access to information. Therefore, information such as applications for building permits, applications for licenses, as well as proofs and statements of experts which have been submitted during the procedure, will not be accessible. This is unacceptable to citizen environmental organizations. The access to information law should solve the problem of access to documents related to the administrative procedure (including the final documents and decisions), especially because the law claims compliance with the EU Directive 90/313/EEC. According to this directive, both the permits and the applications for permits are accessible. The same criticism applies to the exception of "information requested clearly for the purpose of misusing this right." Such an exception does not comply with the EU Directive and can lead to a broad interpretation that could unreasonably reduce the access to information. Another problem related to the exceptions is the exception based on the copyright law protection. The copyright law determines the definition of a "work" and defines and protects the rights of the author. This exception could lead to denied access of environmental information because the information conforms to the definition of "work" set forth in the copyright law. Adding this provision in the information act is absurd because the rights of the author are protected already by the copyright law whether or not the law on access to information mentions it. Moreover, the copyright law is intended to protect creative work and not to keep information secret. Concerning time limits, environmental organizations have objected that the two-month time limit for a response to a request for information is too long. Considering the time limit for issuing a building permit is 30 days (extendible in complicated cases), it seems unacceptable to allow 60 days just to provide information or to deny a request for information. The vast majority of information requests require less management than issuing a building permit. Therefore, a shorter time limit should apply for providing information, and the possibility to prolong this time limit in certain complicated cases may apply. Moreover, time limits may vary not only on the basis of the complexity of the request. For example, when it is clear that the information cannot be disclosed, a shorter time limit (perhaps 10 days) for the response should be applied.
|
There is currently no definition of environmental information which would be used for providing information.
As regarding the draft law there is the definition of environmental information which includes information about the following areas:
There is currently no binding rule providing conditions for obtaining information.
Under the draft law, information on the environment would be provided by bodies of state administration, municipalities, and legal entities established by law or by the state authorities when these bodies carry out tasks in the field of environmental protection. Also, entrepreneurs and legal entities assigned by a contract with a state authority to fulfill tasks related to environmental protection would be obliged to provide information in the scope of the respective assignment.
The draft law also states access to information is to be granted without delay and no later than within two months from the time the request is delivered or completed in case of incomplete or unclear request. This is a time limit for response to the request as well as for providing the information. If this term cannot be kept, the agency would be required to notify the requester about the compensatory term and reasons for the delay. The two-month time limit would also apply in case of a refusal of the request.
A request for information could be made in writing or in another technically comparable form (e.g. fax). Oral and phone requests could be used generally for requests concerning the current daily measured levels or amounts. The agency would have to grant access to the information in a form appropriate to the given case, in particular through written reply, oral answer, providing a copy or transcript of the document, granting the right to inspect materials or through providing reference to a publication in which the requested information has been published. When deciding the form of the answer, the authority could take into account the form of the request, the content and extent of the requested information, the possibilities of the authority itself, as well as other relevant circumstances of the given case. The requester could ask that information be provided in a specific form, but the authority would be able to decide this issue taking into account all the above-mentioned aspects of the case.
Refusal to Provide Information
There is currently no binding regulation defining the conditions when the request for information can be refused.
The draft of the Act on Access to Environmental Information sets out several reasons officials could refuse or limit access to environmental information. The following types of information will not be disclosed:
Further, access to information can be denied if:
Any person providing information to the state authorities without having legal obligation to do so may require the agency to ask his or her permission before disclosing such information to a third party. The authority may disclose such information only with the approval of that person. However, in the case of a trade secret, the public interest test provision could apply in this case.
Access to a whole body of information could also be refused if the reason for refusing access relates to only a part of the information and the remaining part of such information cannot be separated from the denied portion.
When a request concerns access to environmental information that could lead to disclosure of a trade secret, the authority that is obliged to provide such information can ask the holder of this trade secret to confirm that the information is a part of its trade secret and ask the holder's permission to disclose it or its interest in keeping it secret. The holder of the trade secret is obliged to respond to such a request within two weeks. In case of a refusal to disclose requested information, the holder of the trade secret must provide appropriate reasons.
The authority may, nonetheless, provide access to the requested information even after the holder of the trade secret has refused to consent to its release if the authority considers that a public interest warrants disclosure. The authority would then be required to issue an administrative decision according to the Administrative Procedure Act (only the holder of the trade secret is the party to these proceedings). Public interest relating to access to environmental information may prevail if the information concerns human health protection, protection against further harmful effects on the environment, or protection of the world's cultural heritage. The holder of the trade secret can appeal against the decision on information disclosure to the higher authority and, afterwards, to the court.
If an Authority Does Not Possess the Information
There is currently no binding rule dealing with the required procedure when a public authority does not possess the information requested.
In the draft law, if a public authority does not possess the information requested, it should notify the requester about this fact and, eventually, about the possible source of such information.
Costs of Obtaining Information
There is currently no rule dealing with costs of information.
According to the draft law, the requester would be expected to pay expenses related to supplying the information. The phrase "expenses related" means the cost of copying, postage and - particularly in case of the extensive information - the compensation would include the costs of searching for and processing the information.
The information may be provided free of charge if the cost of gathering the information does not exceed Sk 100 (USD 3) in total. This provision does not affect the costs of any publication that contains information on the environment.
The particulars of compensation of costs will be determined by the ministry's own regulations.
Public authorities are not generally obligated to collect, update and disseminate adequate environmental information. However, certain provisions of environmental statutes deal with the collection and active dissemination of information.
The Act on Protection of the Air from Pollutants (No. 309/1991) requires the responsible authorities to make available complete and timely information about the quality of the air and the contribution of individual sources to its pollution. This act has been followed by the Act on the State Administration for the Protection of the Air (No. 134/1992). According to the latter act, the Ministry of Environment must publish information on air quality as well as on the contribution of individual pollution sources at least once a year.
The EIA Act (127/1994) contains a basic regulation concerning notification on preparation of certain development policies. The public should be informed about a proposal for a substantial development policy (especially in the area of energy supply, mining, industry, transport, agriculture, forestry and water management, waste management and tourism). The authority drawing up the proposal is required to inform the public in an appropriate way about the preparation of the policy at least two months before it is discussed with the Ministry of Environment (Article 35).
The Building Act (No. 50/1976) regulates procedures of land use planning, siting, permitting, etc. According to this act, an authority preparing a draft of the local land use plan is required to make the draft available for public inspection for 30 days. The public is entitled to send its comments within an additional 30 days.
The Act on the State Administration of Waste Management (No. 494/1991) states that in the case of public interest, the district agency shall decide on the construction and location of a facility for the waste disposal. The agency must inform the concerned citizens and local governments completely and in a timely manner about all conditions for location of such facility. The decree of the Ministry of Environment No. 76/1992 regulates the details of the waste management programs, the basic document for waste handling in a specific area. The program sets out the waste management objectives both for the producer of the waste and for the territorial district. The state authorities are required to make the programs available by the method usually employed in their respective localities and to post them on the official information boards for at least 15 days. However, legal entities and individuals are entitled to examine the program only upon proving a "justified interest" (Article 4).
The Ministry of Environment has also issued an annual Report on the State of the Environment in Slovakia.
Information dissemination in case of air pollution emergency and operation of the smog emergency and regulation system are regulated by a decree of the Ministry of the Environment (No. 112/1993). According to this decree, the Slovak Hydrometeorological Institute secures central gathering, processing and publishing of information on air pollution, on the location and parameters of the sources of pollution and on the state of dispersion conditions in the critical area. The environmental agency, in cooperation with the Hydrometeorological Institute, declares the relevant emergency and regulation measures and informs citizens about decreases in air quality. The decree also establishes an "ozone smog warning system" and provides for daily reports to the media about measured ozone levels and forecasts.
In the case of serious air pollution, operators of the sources of air pollution are required, along with other measures, to inform the public in an appropriate manner according to the Clean Air Act.
Electronic Means of Dissemination
There is no obligation to make information accessible electronically, and there is no requirement or practice of disseminating information via the Internet.
Nongovernmental Information Centers
There is no NGO information center focused specifically on gathering and disseminating information to the public upon request. However, several NGOs collect and disseminate information during their campaigns or through their activities in the field of environmental education. The public interest law-oriented NGOs help other groups to obtain information in cases in which their request have been denied.
Waste producers are required to report the production, quantity, characteristics and manner of recycling or disposing of special wastes to the state agencies, as outlined in the Waste Act (No. 238/1991). Similar conditions for reporting on water usage and pollution are required by the Water Act (138/1973).
In the draft law on access to information it is stated that in cases where specific legal provisions or decisions require the measurement of the amount and kind of emissions that are discharged into the air or water or the observation of any other impact of their facilities on the environment, polluters would be required to publicize the results of these measurements and observations regularly and in a generally comprehensive form and in a generally accessible place. The published results of such measurements and monitoring would need to clearly show the extent of environmental pollution caused by the facility, specifically both the maximum and minimum value of the levels measured in relation to legally allowed limits.
Under this draft law, a polluter who has endangered or caused damage to the state of the environment would be obliged to inform the public without delay. "Damage" refers to hazards caused by industrial accidents, fire and traffic accidents. The report shall include a brief description of the accident, the cause of the accident, and the extent and range of the damage or endangerment of the environment. The report also would include information about the type of remedial measures adopted.
Public participation in certain types of environmental decisionmaking is outlined in several provisions of statutes dealing with the respective procedures. The most important provisions concerning public involvement in the decisionmaking process are outlined below.
Environmental Impact Assessment - Legal Provisions
The EIA Act (No. 127/1994) regulates the process of assessment of planned constructions and activities from the point of view of their assumed environmental impact. It is also applicable in a reduced scope for the assessment of proposals of certain development plans and policies.
The intent proposal prepared by the developer must describe the proposed activity, the current state of the environment, the expected impact on the environment, etc. The Ministry of Environment distributes a legally sufficient intent proposal to affected municipalities and relevant state agencies for comments. The municipalities publish the intent proposal and the public may present their statements. (Articles 7 and 8)
A screening phase applies to activities determined by the EIA Act which must be assessed if they exceed certain specified limits. The ministry decides based on the comments and statements delivered whether such an activity will or will not be assessed through the whole EIA procedure. This decision is an administrative decision and only the developer is a party to this decisionmaking. In case the ministry decides that the activity will be assessed, or in case there is an obligatory assessment of an activity (a list of obligatory assessed activities is also determined by law), the further steps of the EIA procedure apply (Articles 10 and 11).
During the assessment phase, the ministry, in cooperation with the developer and relevant agencies, determines what problems are to be evaluated, what impacts to focus on, what alternatives must be processed in details, etc. (Article 12, Paragraph 3). The ministry then defines the scope of the assessment and sends it to the affected municipalities, which then make this information available to the public.
In the next step the developer provides an EIA report (Environmental Impact Statement or EIS) which analyzes the expected effects of construction activities on different segments of the living environment and suggests measurements to minimize harmful effects. The ministry delivers a sufficient EIS to the municipalities and relevant authorities. Municipalities make it known that an EIS is open for public inspection and comments, and the municipality organizes a public hearing. Anyone may submit written statements and comments on the EIS (Article 14).
The purpose of an EIS review, which is the next step of the procedure, is to evaluate the accuracy and complexity of the presented EIA documents. The review is conducted on the basis of the EIS, looking at the standpoints presented to the EIS and the record from the public hearing. Based on the EIS review, the ministry prepares a conclusive statement (final statement) containing, among other things, a final recommendation concerning the proposed construction or activity, a proposal for the optimal alternative, and conditions for the project realization. The final statement should also contain an "explanation of the reasons for the final record including evaluation of the written statements to the EIS."
This statement is the final part of the EIA process. It is a necessary document for further procedure of siting and permitting. The state authority competent to issue a construction permit must first consider the final statement of the EIA.
As for public participation, everyone (citizens, associations, authorities, municipalities, businesses) may present comments or statements within the EIA process. Apart from this general right, the EIA Act lays out rights for civic initiatives and civic associations. Because the civic initiative does not have any particularly important powers, we focus on the civic association.
A civic association that meets the legal requirements can be a party to the siting and permitting procedures that follow the EIA process. A civil association, as a party to procedure, thus has all the rights of the party. However, to become a party to the proceedings, the civic association must explicitly be founded for further support of civic initiative created during the respective EIA procedure or it must be created for protection of the environment in the area of activity assessed by the respective EIA process. It must present a statement on the intended proposal or on the EIS, and it must have at least 250 members, of which 150 have a permanent residence in the affected municipality.
The Slovak EIA Act has been praised at international workshops when the text of this act is compared with other EIA laws. However, many problems with the EIA procedure become visible through practical experience. Therefore the NGOs have called for a complex evaluation of the EIA procedure and initiated a public discussion about the effectiveness of the EIA.
Environmental Impact Assessment in Practice
In practice, on one hand EIA provides access to information about the proposed facility and a right to send comments and statements to the authority. On the other hand, it is easy to ignore serious comments from the public, and effective mechanisms to prevent this situation do not exist. When a project combines extremely negative environmental and social impacts with a strong economic and political force on its realization, public participation sometimes degrades to a situation where officials and experts listen condescendingly to citizen statements and then quibble about their comments to approve the activity quickly. Consequently, the NGOs began to use the term "public pacification" to describe the situation when there is a right to speak but without having the enforceable right to have the comments seriously taken into account.
The effective means for enforcement of serious consideration of public comments is one of the main problems concerning EIA.
Administrative Procedure
The Administrative Procedure Act (APA, 71/1967) determines the general procedural rules for several types of administrative proceedings. The APA rules (including the definition of the party to a proceeding) apply to the procedure of issuing licenses and permits, according the Clean Air Act, Water Act, Act on Wastes as well as to the procedure of forest management plan enactment. For some of the decisionmaking procedures, certain specific laws define their own particulars of procedural rules (e.g. the Building Act defines it's own definition of the party to the siting and permitting procedure).
Generally there is no allowance for public participation in administrative procedures. The only way is to become a "party to the proceeding" because only a party can influence the final decision significantly. Only a party to a proceeding has the right:
In addition, only a party to a proceeding can file an appeal or a request for a judicial review of the administrative decision.
According to Article 14 of the Slovak Administrative Procedure Act, a party to the proceedings is everyone whose rights, legally protected interests or obligations are the subject of the decisionmaking; or whose rights, legally protected interests, or obligations can be directly influenced by the decision. Any person who claims that he or she may be influenced by the decision should be considered a party to the proceeding up to time that the opposite is proven.
Although this definition of the party to the proceedings may give an impression that it is quite easy to be considered the party, the opposite is true (see Box 2).
| BOX 2: Difficulty in Becoming a Party in Administrative Decisions |
|---|
It may appear easy to become a party to administrative proceedings in Slovakia, but the following example shows otherwise. In this case, an environmental NGO attempted to influence management of a forest by showing that an administrative decision on the Forest Management Plan enactment in the area would affect the rights, legally protected interests or obligations of the NGO and its members. The NGO was established specifically to protect old growth forests and to represent and defend the best interests of the forest. With these stated goals, the NGO classified itself as a legal association of individuals according to the Assembling Act. As for the forest, its rights and legal protection are guaranteed by Article 1 of the Forest Management Act and by Article 1 of the Forest Act.1 The NGO argued that as a result of improper forest management, the functioning of the forest was weakened and the quality of the living environment was lessened in the respective region. This caused diminished biodiversity as well as financially quantifiable damages on the quality and quantity of the soil and water. The Supreme Court of Slovakia refused the complaint. The court ruled that in order to qualify as one whose rights or interests are influenced by a decision, "it is necessary that the results of the decision, which was taken concerning a third person, reflect on the legal status of another person. The aggrieved persons mentioned but not specified narrowly by the plaintiff could eventually be in this position in connection with stated accountable damages in concrete geographical region. The same applies also to the organization representing the aggrieved persons when it is focused on the continuing protection of the material rights of those aggrieved persons." This interpretation shows that the possibilities for the general public or NGOs to influence general administrative procedure are limited.
|
Land-Use Planning, Siting and Permitting Procedure
The Building Act (No 50/1976) regulates the process of land-use planning as well as siting and permitting. Land use plan preparation requires public notification about the plan preparation. Citizens have a right to inspect the draft plan and to send comments and objections within 30 days. In the case of the local land-use plan, citizens or legal entities whose property rights will by affected by the plan will receive written answer concerning their objections. The authority should notify the requester that the objection has been accepted or should explain why the objection has been refused.
The last amendment of the Building Act (Act No. 229/1997) strengthened the position of the state authorities in the land-use planning procedure, and the powers of municipalities and local governments are substantially reduced. It is not possible, for example, for a municipality to adopt a local land-use plan that contradicts the plans of state agencies. Regional land-use plans (adopted by the regional state authorities) can be passed even when a municipality strongly disagrees with the proposed development of its own territory. Moreover, the local land-use plans (passed by local governments) must be in compliance with the regional land-use plans (prepared and adopted by state agencies), otherwise they will be considered invalid as whole ex lege (Article 25). In fact, this law amendment clearly indicates the current development trend in the area of land-use decisionmaking in Slovakia. The possibility to comment on the draft plan starts to be just a formality in many cases because the "higher" land-use plan decides the most important issues.
With regard to the siting and permitting procedure the public involvement in decisionmaking is almost the same as in the general administrative proceedings. Only parties to the siting and permitting procedure may participate at the decisionmaking, and the Building Act defines its own definition of a party: The parties to the siting procedure are, besides the developer, those persons whose property rights may be directly affected by the decision. This includes adjoining landowners (Article 34).
Party to the permitting procedure, as defined in the last amendment of the Building Act, is every person who has property rights to the lands and constructions (including adjoining landowners), if property rights to these can be affected by the building permit (Article 59). This means that it is not enough just to own an adjoining land - these property rights must also be affected by the permit.
Generally, only parties to the proceeding will be informed about the initiation of the permitting procedure. If there is an application for permitting of large construction with a large number of parties and where there is an "adequate reason," the authority should publicize the permitting procedure. This also apply also to linear constructions (i.e. highways).
The only way for the public to enter these procedures as a party is to create an association according to the EIA Act. If the proposed activity has been assessed through an EIA procedure (this applies mostly to large constructions determined by the EIA Act), citizen associations that comply with the requirements defined by the EIA Act can be considered a party to the siting and permitting procedures. The associations must be founded explicitly for protection of environment concerning the activity assessed by the respective EIA process, and it should have at least 250 members, 150 of whom have permanent residence in the affected municipality.
Generally, NGOs and the public do not participate in the siting and permitting procedure due to the "nonpublic character" of administrative proceedings. The only possibility - to participate through the citizen's association according to the EIA Act - is insufficient because only large constructions are assessed during an EIA procedure and because of the formation and membership restrictions NGOs face when seeking to join the proceedings.
Construction Ban
An important decisionmaking process is the procedure concerning the "construction ban." A construction ban is an administrative ordinance forbidding or restricting construction activities in an area that is supposed to be used for a certain purpose (e.g. for the construction of dams or highways in the future). In some areas a construction ban has been in force for more than 30 years.
There are several results of such long-term restriction, including undeveloped infrastructure, decreasing number of inhabitants and, consequently, the easier and cheaper expropriation of the citizens' property.
Although a construction ban directly affects the rights of citizens and municipalities, they are not parties to the administrative proceeding declaring the construction ban. According to the Building Act, only the developer proposing the construction ban can be the party to this proceeding (Article 34). A village and its inhabitants are not allowed to participate at all.
In December 1997, the constitutional court heard the complaint of the village of Dubakovo and its inhabitants challenging the long-term construction ban imposed on their village in 1982.
Fifteen years after the ban was imposed, the developer still was not able to say when the construction of the dam would take place or how long the rights of the inhabitants would be restricted. The court ruled that this construction ban was an unconstitutional restriction of basic human rights, and it struck down the decision of the district agency. The judge decried the construction ban procedure, especially the fact that such a procedure imposes a long-term restriction on the community without any participation by the affected people. However, this ruling merely canceled the ban in the village of Dubakovo and does not affect the legal regulation of the construction ban procedure outlined in the Building Act.
Local Rules
The law does not guarantee public participation in preparation and passage of local rules. However, sessions of the local government are generally accessible to the public, and the members of the local council may allow the residents of the village to speak.
The activities of the city of Pezinok can be considered an example of the best practices. The municipality initiates public hearings concerning all important decisions to be prepared. The hearings function as a public session of the city council. The public may present comments and statements about the decision under preparation at a very early stage of the decisionmaking. The municipality prefers this type of public involvement because "it is too hard for the public to participate effectively just at the end of the procedure, when the decision is considered by the members of local government. There is a lot of information relevant and it's often hard just to understand them at the parliamentary session. Therefore, we try to present the issues and get feedback sooner. When the decision is made, we present its reasons, including explanation of how the public comments have been taken into account" (interview with Pezinok City Manager Ladislav Briestensky, February 1998).
Every "important question of public interest" can be the subject of a referendum. The president of Slovakia must declare a national referendum when at least 350,000 voters petition for one. The president also can declare a referendum if a parliamentary resolution requests declaration of the referendum (Constitution, Articles 93-95).
The results of a national referendum are valid only if more than half of eligible voters participate, and the referendum must be approved by more than 50 percent of those who do vote. The parliament must declare the results of referendum as law, but it may legally amend or abolish the result of a referendum within three years from the date it becomes effective.
As regards local referenda, a local deputy council must declare a local referendum to divide or merge villages; or, more importantly, for other issues upon the petition of 20 percent of the voters. The local deputy council also may declare a local referendum to decide any other important question.
Results of a local referendum are valid if at least half the eligible voters participate and the decision is supported by at least 50 percent of those who vote. Voters in a local referendum must be permanent residents of the locality (Act 369/1990, Article 11a). Except for the division of a village, the result of local referendum does not supersede the decision of the local government.
Many local referenda do indeed focus on division of villages, and sometimes certain environmental problems cause a village to split. There are also a few examples of referenda on environmental issues, including a referendum initiated in 1993 in villages affected by the planned Tichy Potok dam and referenda in several villages concerning the siting of waste disposal.
Right to Initiative
There is no right to citizen initiative in Slovakia. Only the committees of the national council, deputies and the government may propose legislation to the national council (Constitution, Article 87).
In the Advisory Committee for Nature Protection there are two members who work in the NGO community. These experts do not represent the NGOs in the Advisory Committee but work there as independent experts.
In the case of EIA, the situation is even more complicated because in Slovakia, EIA is a special statutory procedure completely separate from the administrative procedure. Therefore, the Administrative Procedure Act, which includes the appeal and judicial review possibilities, does not apply to EIA. The only applicable "remedy" in case of procedural shortcomings or ignored comments is to send an administrative complaint to the Ministry of Environment responsible for the EIA. The ministry must then respond to the complaint within 30 days. This is not an effective mechanism to ensure that comments are seriously taken into account, of course. Consequently, both the procedural objections as well as comments to the substance of the EIA are often disregarded.
For example, an NGO and a municipality required the criteria for balancing the activity alternatives in their statements to be defined by responsible authorities (in fact, to define criteria is an essential obligation of the developer to meet the requirements for the sufficient EIS, according to the EIA Act). The statement had been ignored during the whole procedure, so the NGO submitted a complaint questioning the legality of the procedure. The minister wrote in his response to this part of the complaint that "in case of such a complex problem ... it is simply not possible to accept all the statements and comments presented by the all participants of the environmental impact assessment procedure."
In another case, municipal officials, along with the developer, did not organize a public hearing. Instead, several well-known NGO opponents of a proposed project were invited to participate in a small explanatory meeting. This meeting was considered a regular public hearing in the further steps of the procedure, even though the NGO objected it in its complaint. Further, a complain that the municipality did not disclose documentation according to the law has been ignored by the Ministry of Environment because the matter is considered to be the responsibility of the municipality and the ministry is therefore not entitled to do anything about it (complaints of Dubnica Environmental Group, 1995 and Slatinka Association, 1996).
Another possibility is to ask a prosecutor to review the legality of an agency decision, but this is not an effective remedy, either. In addition to the basic problems related to the prosecutor's supervision (see the section on access to justice), the EIA regulations often use vague terms such as "usually," "in an appropriate manner" or "in an appropriate scope" in crucial phases of the procedure. Although this enables the authorities to be flexible, it also provides the authorities with complete discretion to make arbitrary decisions that no other independent body is entitled to review. Therefore, these terms can easy turn "usually" into "almost never," for example, without any effective remedy to be applied by the public.
Environmental Impact Assessment
The EIA Act contains a basic regulation concerning notification on preparation of certain development policies, but the public participation in this preparation is uneven. The public should be informed about a proposal for a substantial development policy, especially in the field of energy supply, mining, industry, transport, agriculture, forestry and water management, waste management and tourism. The authority responsible for the proposal is required to inform the public in an appropriate way about the preparation of a policy, at least two months before it is discussed within the Ministry of Environment (EIA Act, Article 35). Contrary to the law, the Industrial Policy draft did not include the environmental assessment, and it has not been publicly announced that such policy is being prepared. Since the law does not deal with the situation when parliament acts unlawfully, the policy has been adopted by parliament without the environmental impact assessment and without notifying the public about the policy. In fact, the public has no possibility to act effectively in this situation. Another example is the one of energy supply policy. The draft has been discussed during a public hearing and notification in business magazines has been published about this policy preparation.
Law Drafting
There is no rule dealing with public notification and participation in law drafting. In practice, several NGOs have been sent some of the draft laws by the Ministry of Environment when the draft law was being discussed with the other ministries. This was true in the case of the most important laws, such as the EIA Act, Nature Protection Act, Access to Environmental Information Act, etc. There is no rule concerning the list of NGOs informed about the development of legislation. Any NGO can ask to be added to the list of NGOs informed, but the Ministry decides at its discretion.
Openness of Parliament
According to the constitution, parliamentary sessions are public (Article 83, Paragraph 3). According to the Act on Procedural Rules of the Parliament (Act No. 350/1996), citizens are generally allowed only to observe parliamentary sessions, up to the capacity of the area appointed for the public (Article 18, Paragraph 1). A session can be closed to the public when the subject of the session includes state secrets, official secrecy or trade secrets, or if a two-thirds majority of the MPs decide to close the session.
The sessions of local governments are also open to the public (Act on the Municipal System, No. 369/1990, Article 12, Paragraph 3), except when the local council decides to close the session. This is possible when the subject of the session includes matters that should be kept secret to protect state interest. Local councils may permit local residents to speak and/or participate in the session as well as to observe.
The practical effect of these provisions is not as great as it may appear. As is the case with many other provisions of the Slovak Constitution, it is possible to exercise these rights only under the conditions set by law (Article 51). Therefore, real execution of these rights is possible only in cases determined by the statutes, and only parties defined by those statutes can gain standing. The Act on Civil Court Procedure (ACCP, No. 99/1963) sets the conditions for access to the "general courts" in both civil procedure and administrative judiciary. The constitution (Article 127, etc.) and the Act on the Organization of the Constitutional Court (No. 38/1993) define the procedure for taking cases to the constitutional court.
According to these laws, to gain standing a plaintiff has to claim that his or her rights have been affected. Therefore, only the affected person may approach the court; actio popularis does not exist in Slovak law. Moreover, it is not possible for an individual to sue simply on the basis that the action of a person or an agency does not comply with the law. In many cases, only the prosecutor or other state authority is entitled to act, and there is no possibility to file a lawsuit by an individual, for example when an authority does not follow procedures spelled out in a law.
The parties to the court proceedings are the plaintiff and the defendant, unless the law defines the parties specifically for the respective procedure (ACCP, Article 90). Courts also are entitled to review the legality of the decisions of the state agencies and municipal authorities. The term "decision" means the administrative decision as a result of concrete administrative proceedings as well as any other decision which creates, changes or abolishes the rights and obligations of the natural and legal persons (ACCP, Article 244, Paragraph 3).
The law determines several categories of decisions which cannot be reviewed by a court. These include procedural and organizational decisions; decision on the "construction ban" issued according to the Building Act; the approval on the constitution of the energy source; the approval on the constitution of the water management work issued according to the Water Act; the approval on the import, export and transportation of wastes issued according to the Act on Wastes; the decision to restrain the source of air pollution in case of potential harm on the living environment from a facility that does not comply with the conditions set by law; the decision prohibiting photography issued according to the Act on State Secrets; etc. (ACCP, Article 248 and Appendix A)2.
Access to the constitutional court is given when a legal or natural person claims an action of the public authority affects his or her rights guaranteed by the constitution. The constitutional court deals only with specific cases and does not belong to the competency of the "general courts."
Regarding the specific questions of public participation, the law does not provide the right to go to court in case of denial of access to environmental information (this will be possible after the new law on access to environmental information will be in force). In case of failure to allow public participation, generally the prosecutor is entitled to review the action of the state agency. The access to the court is possible only, for example, when the party to the administrative proceeding asks for a judicial review of the administrative decision and claims the decision unlawful. Due to the strict conditions for becoming a party to the administrative proceedings, it is very problematic to use this possibility as a tool for enforcement of proper public participation.
Concerning other types of environmental problems, a judicial review of the administrative decision is possible. Only the party to the proceeding as an affected person may file such a lawsuit. Some of the environmental problems can be the subject of the court trial based on the nuisance provision of the civil code (Act No. 60/1964, Article 127) and on the civil responsibility provisions (e.g. Article 420).
There are two examples of court cases with a strong environmental aspect. The case of the Forest Protection Movement Wolf concerning gaining administrative standing in the process of Forest Management Plan enactment (1996, see part on public participation in administrative proceedings) and the constitutional court case of the village of Dubakovo when the Court canceled the decision on the construction ban. (1997, see part on public participation in siting and permitting procedure).
According to the present legislation, there is no administrative procedure regarding provision of information. However, the draft Act on Access to Environmental Information states that if access to information is denied, the requester can ask for an administrative decision on the refusal and appeal under the Administrative Proceeding Act to a higher authority - and afterwards, if necessary, to a court.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | x* | x** |
NGOs |
||
| everyone | - | - |
| interested/affected | x* | x** |
| *APA, Article 14: Everyone whose rights, legally protected interests or obligations are to be the subject of the decisionmaking; or whose rights, legally protected interests or obligations may be directly influenced by the decision. Persons who claim that they may be influenced by the decision shall be considered a party to the proceeding as well, up to the time the opposite is proven **APA, Article 53: Unless the law stipulates otherwise, the party to the proceeding is entitled to file an appeal against the administrative decision. |
||
| TABLE 2: Legal Standing Against Government | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | x1 | - | - | x2 |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x1 | - | - | x2 |
|
1. Act on Civil Procedure, Articles 247-250*, Act No. 58/1969** 2. Constitution,Article 127, Article 130 Paragraph 3***, *There are no special administrative courts in Slovakia. However, there is a special procedure called the "administrative judiciary" determined by the Act on the Civil Court Procedure. This procedure applies to cases in which a person claims to have suffered injustice by a decision of an administrative body and requests the court review of the legality of the decision. These cases are decided by special senates of the civil or "general" courts. **The Act on the State Liability for the Harm Caused by the Unlawful Decision of the State Authority or its Incorrect Action. ***Article 127: The constitutional court hears complaints against the valid decisions of the state authorities and municipal authorities which affect basic human rights if the protection does not belong to the competency of the other courts. (Article 130, Paragraph 3): The constitutional court also may begin the procedure upon the request of legal and natural persons claiming infringement of their rights. |
|||||
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | x* | - | - | - |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | x | - | - | - |
| *Civil Code, Article 420 and Article 127 (the nuisance provision) | |||||
When the prosecutor protests an unlawful decision by an authority (Article 11), the authority must amend its decision or refer the protest to a higher authority to decide. In the case of protest concerning administrative procedure, the minister shall decide at the final stage. If the authority does not comply with a prosecutor's protest, the prosecutor can file a complaint to the court to review the legality of the agency's decision (Act on the Civil Court Procedure, Article 35, 250, etc.). The condition to exercise this right by the prosecutor is that such action is required by public interest.
In the case of incorrect action of the state authority (e.g. the authority does not release information as it is required to do), the prosecutor is entitled to compel the agency to do what is right (i.e. release the information). The agency then must inform the prosecutor about the measures taken to correct the unlawful action.
The main problem concerning the prosecutor's control over the legality of actions of the state agencies is the structure of the procuracy and hierarchy of prosecutors. The procuracy is directed centrally and on the basis of subordination; therefore, a higher-level prosecutor may order instructions to a subordinate prosecutor concerning an agency's decision and the higher-level order must be obeyed.
Another problem is that individuals have only the right to request action from the prosecutor and cannot appeal or get involved in the process themselves. For example, an NGO tried to challenge an unlawful instruction of the Ministry of Agriculture by filing a complaint that said the ministry's instruction was unlawful and could cause many unlawful actions by lower-level officials. The ministry's response to the complaint attacked the leader of the NGO and did not respond to the substance of the complaint, so the NGO asked the prosecutor to act against the manner in which the ministry handled the complaint. The prosecutor declined to act because, he said, the ministry had fulfilled its obligation to respond. Further, he could not deal with the substance of the dispute because the prosecutor is empowered to enforce the law but not to interpret it. (Forest Protection Movement Wolf, and the response from the Attorney General, 1997).
The courts also have power in cases against enterprises to order a party to keep from doing something, or to order a party to tolerate something (ACCP, Article 76). The court may issue the preliminary order should it be necessary to arrange the relations between the parties, or if the court ruling could be hindered without such an order (ACCP, Article 74).
These laws set forth detailed procedures for enforcement of a court decision. There are several ways to enforcement a judgment (e.g. sale deduction, auction of property, etc.). If the court order requires non-financial action and it is not done, the court may levy fines of up to Sk 100,000 (USD 3,000).
However, it is important to note that environmental organizations, foundations, and charitable and humanitarian organizations are exempt from paying court fees (Article 4 of the Act on the Court Fees No. 71/1992).
One of them also provides services in the field of environmental law. This NGO employs two lawyers (one full-time, one half-time), and it works with a group of five to 10 student volunteers. The NGO provides legal aid, offers legal representation before the agencies and the courts, and prepares manuals on the legal issues. It does not earn any fees for its services.
2. Several legal experts consider the list of decisions that are not subject to review to be an unconstitutional restriction of the right to access to the courts, according to the Article 46 of the constitution.
