Croatia

I. Introduction/Recent Political Context

Croatia has been working on a new environmental protection law. Currently it operates under the environmental protection scheme based upon over 400 regulations dating from the days of Croatia's status as a Yugoslav Republic.

II. Legal Structure and Legislative Process

A. Constitution

1) Basic Rights and Obligations

Among the highest values of the constitutional order of the Republic of Croatia, as specified in Article 3, is "conservation of nature and the human environment." A general obligation of protection of natural, cultural, ecological, historic, or economic values is stated in Article 52. Article 69 states, inter alia:

The Republic shall ensure citizens the right to a healthy environment. Citizens, government, public and economic bodies and associations shall be bound, within their powers and activities, to pay special attention to the protection of human health, nature and the human environment.

At least one Croatian legal expert concludes that an individual could bring an action before the Constitutional Court for harm to the environment in vindication of this right.

The Constitution prescribes basic institutions of local government and self-government, guaranteeing (in Article 128) that:

the citizens have the right to decide on the citizens' needs and interests of local importance, particularly physical planning, town-planning, settlement arrangement and housing, communal activities and on the protection and promotion of natural environment.

b. Right of Expression
Freedom of thought and expression are guaranteed by Article 38 of the Constitution.

c. Right to Information
Article 38 of the Constitution also provides that journalists shall have the right to freedom of reporting and access to information.

Parliamentarians have the right to demand information from the government under Article 86. Where citizens are unsuccessful dealing directly with the government, they may have more success if they can convince their representatives to seek the information.

d. Right of Free Assembly
This right is guaranteed by Article 42 of the Constitution.

e. Right of Association
This right is guaranteed by Article 43 of the Constitution, subject to limitation by the prohibition of any violent threat to the "democratic constitutional order and the independence, unity and territorial integrity of the Republic."

f. Right to Petition

Article 46 of the Constitution provides:

All citizens shall have the right to submit petitions and complaints, to make proposals to government and other public bodies and to receive answers thereto.

g. Government's Relationship to the Citizens

Article 1 of the Constitution proclaims that the power of the state derives from the people and belongs to the people as a community of free and equal citizens. It continues:

The people shall exercise this power through the election of representatives and through direct decision-making.

2) Right to Petition Constitutional Court for Review

a. of Law or Rule
Article 15 of the Constitutional Law on the Constitutional Court provides that every citizen has the right to initiate the "assessment of the constitutionality and legality of laws and other regulations." The Constitutional Court has the power to suspend the enforcement of individual actions undertaken on the basis of the challenged law or regulation if the enforcement of such law or regulation would cause irreparable harm.

b. of Action of Official
Within the jurisdiction of the Court is "protect[ing] the constitutional freedoms and rights of man and the citizen." Const., Art. 125. This power implies that individuals may bring cases before the court complaining of violations of constitutional rights involving public officials.

Article 23 of the Constitutional Law on the Constitutional Court declares:

Every citizen whose Constitutional rights have been violated by a valid individual act on the basis of an abolished law or other abolished or annulled regulation has the right to seek reconsideration from the body competent over the individual act [by applying the correct law in a repeated procedure].

If that is not sufficient to find relief, Article 28 of the law declares:

(1) Every citizen can submit a constitutional complaint to the Constitutional Court if he considers that one of his personal and civil freedoms and rights established by the Constitution has been violated by a decision of judicial or administrative power or other bodies vested with public powers.

(2) If there is another instance which can deal with the violated constitutional right the constitutional complaint should be submitted first to that instance; then if that instance has not given a satisfactory answer, the citizen can submit the complaint to the Constitutional Court.

3) Other Remedies

Article 93 of the Constitution creates the office of ombudsman, whose duty is to:

protect the constitutional and legal rights of citizens in proceedings before government administration and bodies vested with public powers.

The Law on Ombudsman, Article 12, gives to the Ombudsman the power, on his own initiative or at the urging of a citizen, to examine individual violations of constitutional and legal rights of citizens, and other irregularities in the exercise of state administrative power. Every citizen has the right to submit petitions to the Ombudsman, without regard to whether the petitioner has himself suffered direct injury.

B. Legislation and Rule-Making

1) Constitutional Provisions

2) Right of Initiative

There is no right of initiative on the level of national legislation. On the level of local self-government, citizens have the right to propose

to the municipal or city council to make a determined act or to propose the solution of certain questions under its competence.

Law on Management and Self-Management, Art. 19. Citizen propositions must be considered by the local government body if demanded by at least 10 percent of the electors on the list of municipal or town electors. The answer to the proposition is required within three months of its reception.

3) Right of Referendum

4) PP Provisions in Laws

The Law on State Administration declares, at Article 86:

State authority bodies are obliged to organize their work and activities in such a way that citizens and legal persons can realize their constitutionally guaranteed rights and legally protected interests and fulfil their citizens' duties in a simple and efficient way.

5) PP in Parliamentary Practice

The Parliamentary Committee for Physical Planning and Environmental Protection frequently invites representatives of environmental NGOs to discuss drafts and submit comments. This Committee defines the basic strategy of environmental protection in Croatia; therefore, lobbying Committee members may be an effective means of exerting public pressure. The Parliament as a whole regularly publishes "Reports of Croatian Parliament," which contains parliamentary discussions on proposed laws.

An additional means of "lobbying" parliamentarians is by making suggestions or complaints to the Parliamentary Committee for Submissions and Complaints.

6) PP in Governmental Practice

The government usually requests the opinions of experts but the government is under no obligation to respond to expert opinions in any way.

Public notification of proposed laws is not mandated. The Ministry of Civil Engineering and Environment publicizes meetings on proposed environmental legislation and frequently consults with public sector experts while drafting legislation. The Ministry also regularly publishes draft laws in its newsletter, OKOLIS, in which it also solicits comments. Law makers have often included the public in the legislative process in ways not required by law. For instance, officials distributed the draft environmental law to some environmental NGOs for comment, and, while developing legislation on disposal of used oil, officials widely solicited public suggestions.

7) PP on Local/ Regional Government Level

The Constitution provides, Art. 129, inter alia:

Citizens may directly participate in the management of local affairs, in conformity with law and the by-laws of local self-government units.

Citizens shall also have the right to establish, in conformity with law, other forms of local self-government in localities and parts thereof.

Among the matters that local self-governments have rights to decide upon are protection and promotion of the environment, under Article 128 of the Constitution.

For powers of the citizens with respect to initiating and calling for referendum of local ordinances, see above.

The obligations and authority of local governments is determined according to the Law on Local Management and Self-management (NN No. 90/92). Article 57 of the law states:

Local committees are established as a way of direct participation of citizens in decision making regarding local affairs which are of immediate everyday influence upon the life and work of citizens.

Under Article 63, local councils have the power to call local citizen assemblies in order to discuss citizen needs and interests and to suggest solutions to questions of local importance.

Under the Croatian scheme of local self-government, most environmental protection matters are handled on the national level. Municipalities and towns have authority over local environmental protection and town planning, and counties (zupanija) have authority over protection of the environment with respect to the common interests of its constituent municipalities. Article 13 of the law states, in pertinent part:

Municipalities and towns within the frame of self-management domain ... ensure conditions for spatial arrangement, urban planning and environmental protection, unless it is otherwise defined by a special law.

Every citizen has the right to propose laws or solutions to particular problems on the local government level. Every citizen has the right to submit submissions and complaints to the local administrative authorities and to receive an answer.

With respect to citizen involvement in local affairs, the Law on Local Management and Self-Management requires local councils to respond to citizen proposals within three months if such proposals have been ratified by 10 percent of the town electors.

C. Right-to-Know and Freedom of Information

1) Constitutional Provisions

Parliamentarians have the right to demand information from the government under Article 86. Where citizens are unsuccessful dealing directly with the government, they may have more success if they can convince their representatives to seek the information.

2) Laws

The Law on State Administration states, at Article 82:

Relations between public administration and citizens are based on mutual cooperation and confidence and respect of the dignity of the human person.

State authorities are obliged to give to citizens and legal persons data, to inform them and advise them and offer them expert help in matters citizens come to public authorities for.

State authority bodies have an obligation to inform the public about activities they perform in their domain and through the public media report about their activities or use another appropriate way for reporting.

Croatia has no freedom of information law. There is a Law on Information of the Public, but this law primarily concerns rights of journalists and state censorship of the media It does contain a general statement, Art. 3, that "Public information is free." It continues:

Freedom of public information includes especially freedom of free opinion, expression, freedom of collecting information, research, publishing, divulging and receiving of information, freedom of founding enterprises and institutions for publishing newspapers and other material, broadcasting and cinema-informative activities.

Article 4 of the same law prohibits the imposition of limitations on free public information. Article 5 provides:

Information held by legislative, executive, court and other authorities vested with public power, or by the units of local self-government bodies, are accessible to the journalist under equal conditions, in accordance with regulations concerning the work of those bodies.

The authorized person within a body vested with public power has an obligation to give the information from their area of responsibility in reasonable term.

The authorized person within a body vested with public power will not give information which by the law or another rule has been defined secret in order to protect private or public interest.

The authorized person within bodies vested with public power is accountable for the correctness and competence of information given in accordance with the prescription of item 2 of this article.

None of the environmental laws currently in effect has specific provisions granting to the public the right of access to environmental information, whether of a general nature or with respect to specific polluters. Certain information may be accessible by interested parties pursuant to the Environmental Impact Assessment process and physical planning. The draft environmental protection law would create a regime of access to information and mandatory disclosure.

3) Procedures

4) Reporting Requirements

5) Remedies

Other officials of state government, such as prosecutors or the Ombudsman, may be petitioned to vindicate claims of right or to institute public proceedings.

III. Legal Process

A. Administrative Law and Procedure

1) Administrative Actions by the Public

The Constitution, Article 19, provides in pertinent part:

Judicial review of the legality of individual acts of administrative authorities and bodies vested with public powers shall be guaranteed.

Article 1 of the Law on Civil Proceedings states:

In order to ensure the court protection of the right of citizens and legal persons and to ensure legality, a court in an administrative cause decides about the legality of acts performed by state apparatuses and organizations vested with public powers and reaches solutions about rights and obligations in administrative matters.

The Law on the System of State Administration and the Law of Civil Procedure permit persons to challenge the legality of a public official's action by filing a complaint or by bringing a suit to the Administrative Court or to a civil court. Article 15 of the Law on the System of State Administration provides that complaints may be made against

individual actions, activities and measures of state government bodies and legal person vested with public power in ... specific affairs of state administration ... and in case the complaint is not allowed court protection can be requested.

Article 89 of the Law on State Administration declares:

State authority bodies are obliged to make it possible for the citizens and legal persons to submit criticisms and complaints regarding the work of state administration as well as the unfair relationship of state officials when citizens come to them to realize their rights and interests or to fulfil their civic duties. The head of the state authority body has to give an answer to citizens' criticisms and complaints within 30 days from the day the complaint has been received.

2) Intervening in an Ongoing Case

3) Challenging Official Inaction

Article 89 of the Law on State Administration declares:

State authority bodies are obliged to make it possible for the citizens and legal persons to submit criticisms and complaints regarding the work of state administration as well as the unfair relationship of state officials when citizens come to them to realize their rights and interests or to fulfil their civic duties. The head of the state authority body has to give an answer to citizens' criticisms and complaints within 30 days from the day the complaint has been received.

Article 13 of the Law on the System of State Administration states:

Damage which is done by illegal or irregular actions from the bodies of state administration, bodies of local self-management and management or bodies vested with public powers to which have been transferred specific affairs of state administration, shall be compensated by the Republic of Croatia.

B. Public Participation in Environmental Protection Laws

1) Environmental Impact Assessment

The "Law on Physical Planning and Spatial Arrangement" of 1980 and the "Regulations on Environmental Impact Study" of 1984 regulate the EIA process. The governmental decree elaborates the requirements of the law and applies to proposed projects and to reconstructions of existing facilities. Under Article 20 of the regulations, the competent body shall, inter alia, "prepare documentation for public review." Generally it is the duty of the local government and the proposer of the activity to organize the public participation proceeding. Costs are covered by the proposer of the activity. Article 25 of the regulations specifies the requirements for public review:

The evaluation of the study also entails public review at each stage of the study elaboration.

Exceptionally, the public review may be organized only for the final study, provided that this is the decision of the expert commission for the evaluation of the study.

The public review is organized ... for a minimum period of one month.

The Ministry of Civil Engineering and Environmental Protection, which is charged with implementing EIA procedures, is obliged to respond to public comments. If the comments submitted by the public were not incorporated into the final assessment, the reasons for non-inclusion must be given.

In conducting EIAs, according to some Croatian legal experts, it has become evident that the EIA regulations are not specific enough regarding procedures for public discussions and for consideration of public comments. Revision of the 1984 regulation is currently being proposed. The draft environmental protection law would also prescribe more detailed public participation provisions in permitting for new facilities.

Persons living in the vicinity of a facility that has been granted a permit may appeal the decision to the Administrative Court. In one recent case, the public appealed the issuance of a permit for a cigarette factory, which was subsequently required to install additional emissions filters to protect the environment.

An example of how the EIA process works in practice can be found by examining the proposed motorways Rijeka-Karlovac and Zagreb-Varazdin, and the Adriatic Highway. In the case of the Rijeka-Karlovac motorway, Kupjak to Bosiljevo section, a preliminary study of environmental impacts was forwarded to the municipalities of Delnice, Vrbovsko and Duga Resa for public discussion. Documentation review and public hearings were held in the municipalities consecutively from December 1992 through March 1993. Many of the suggestions made during the public review were accepted by the authorities, including the construction of three additional tunnels and a special bear crossing and implementation of additional measures to protect water supplies. In the case of the Zagreb-Varazdin motorway, public review and discussions held April-May 1993 resulted in a route change to avoid the thermal resort of Varazdinske Toplice and the construction of a wild game crossing. Measures were later incorporated to protect groundwater in the area of Cakovec. In the case of the Adriatic Highway, 6 route variants have been proposed. The Ecological Society of Crikvenica opposes all proposals thus far and the project has been suspended.

2) Environmental Permitting

The laws on air and water are currently under revision. Under both the current laws and the drafts, however, there are no public participation provisions applicable to permitting for discharges into air or water for existing facilities.

The Waste Law contains no public participation provisions during the issuance of permits to generators, storers, disposers or transporters of waste. Articles 9 and 10 of the law, however, require plans for waste storage and disposal to be disclosed to the public. There are no laws which require public disclosure of permits for existing facilities.

3) Citizen Enforcement, Monitoring and Inspection Rights

Monitoring of compliance with laws, regulations and permits is done by local government and state inspectors. There are no laws which would enable citizens to bring direct actions to enforce environmental laws against violators. Their only recourse is to file complaints with the authorities.

4) Remedies

5) Liability

In Croatia there are numerous cases of obstacles to the use of civil causes of action for damages to health due to pollution. The courts have applied a difficult standard of establishing causation which generally prevents injured parties from prevailing. Viewed another way, it is difficult to meet standing requirements without establishing direct injury.

C. Public Participation Through Other Laws

1) Land Use Laws

In addition, Article 19 of the law requires the holding of a public discussion concerning proposals for land use plans. The public discussion seems to be tilted towards municipal and city representative bodies, however, since the law mentions that opinions of only those bodies shall be collected. The means and procedure of the public discussion is determined by the county, or by the municipality or city, depending on the level of the plan.

2) Construction Permitting

3) Civil Code (Liability) and Civil Procedure

In Croatia there are numerous cases of obstacles to the use of civil causes of action for damages to health due to pollution. The courts have applied a difficult standard of establishing causation which generally prevents injured parties from prevailing under the general Civil Code.

Article 1 of the Law on Civil Proceedings states:

In order to ensure the court protection of the right of citizens and legal persons and to ensure legality, a court in an administrative cause decides about the legality of acts performed by state apparatuses and organizations vested with public powers and reaches solutions about rights and obligations in administrative matters.

Article 223 of the same law states that a civil right of complaint is available against administrative actions which violate laws or rights.

4) Penal Code

Chapter 15 of the Penal Code of the Republic of Croatia specifies penalties for crimes against human health. Article 162 states:

The pollution of the human environment is a matter of penal action.

The law further prescribes penalties for the polluter.

Additionally, Chapter 20 of the Penal Code deals with acts against "other social values" and specifically includes a criminal offense of the importing of hazardous substances into the Republic of Croatia. Art. 202.

IV. Anticipated Developments in the Law

Draft laws on air and water do not currently provide extensive opportunities for public participation but do require disclosure of environmental information to the public.

Public participation procedures are a key reason behind an effort to overhaul the 1984 Environmental Impact Assessment regulation.

V. Case Studies on Public Participation
(including Public Actions)

It may be predicted that the development of public participation in decisionmaking will quickly develop after the cessation of hostilities. The pressure for rebuilding a psychologically torn society is great and only needs a resolution to the military and ethnic conflict to be released. Looking forward to that time, the pressure for development of tourism and the protection of resources that for the first time in recent years will be treasures of a Croatian nation should promote acceptance of various tools, including public participation mechanisms. Up to now, however, the war prevents any real movement in this direction.

The public in Croatia has in several instances acted in opposition to legislative enactments threatening the environment. Opposition to the construction of incinerators in Zagreb provides one striking example. Public pressure halted construction, pending the development of an integrated solid waste management program for Zagreb. Also, a current case worth watching is the Cokery Bakar near Rijeka, an administrative proceeding in which interested local residents have received standing to participate.

Citizens groups have also pushed for action by the government and the legislature. In the summer of 1993, the Croatian Green Alliance organized a postcard-writing campaign in which 13,000 cards were delivered to the Prime Minister demanding regulations that would reduce the amount of non-returnable packaging and would eliminate polyvinyl chlorides in food packaging.

The public has mobilized against the granting of pollution permits in a number of cases, and they succeeded in blocking the permitting of a landfill in the Bistra and Sesvete area of Zagreb. In Dalmatia the development of a nuclear power plant was prevented by organized public opposition. In Plomin, Istria the public forced the addition of sulphur dioxide controls onto the proposed construction of a coal fired power plant, increasing its cost by approximately 30%. The latter two cases involved public actions which took place under the former Yugoslavia, prior to Croatian independence. In another such case, the group Green Line of Novi Marof, a member of the Croatian Green Alliance, successfully opposed construction of a cement plant in its locality in 1991. See also the discussion under "Environmental Impact Assessment."

Local observers report that the Croatian media has increased its coverage of environmental issues. The "Open University" in Zagreb holds regular monthly public discussions on specific environmental issues. Green Action Zagreb operates an environmental "green phone" hotline.