Ecopravo-Lviv

October, 27, 2004
The judges continue to ignore the law and environment

On October 21, 2004 the Supreme Commercial Court heard the cassation of Ecopravo-Lviv on the Kiev Appeal Commercial Court ruling regarding challenging the conclusion of the environmental expertiza on the TEA of Investments of the Danube-Black Sea deep-water navigation canal construction on the Ukrainian Part of the Danube Delta of July 10, 2003.
The Supreme Commercial Court stated that the cassation and the court proceedings are senseless, as the canal has been already constructed. The Court did not take into consideration, that the Appeal Court and the Ministry violated the law and our rights, which are supposed to be the main argument in decision making on this case.
The Supreme Commercial Court made the decision to dismiss the cassation appeal. Thus, the decision of the Appeal Court is left in force, as well as the appealed conclusion of the environmental expertiza.
Ecopravo-Lviv is planning to appeal this decision to the Supreme Court of Ukraine.
We hope that the Supreme Court of Ukraine will be independent and politically neutral, unlike the Appeal and the Supreme Commercial Courts.

October, 18, 2004
Danube-Black Sea canal: the visit of the Joint Fact-finding Mission of the European Commission and International Conventions on the “Bystroe canal”

The visit of the Mission to Ukraine took place on October 6-8, 2004. The visit was caused by the increasing international attention to the construction of a deep-water navigation canal in the Bystroe arm. The international community is concerned by the lack of comprehensive and independent environmental impact assessment.

Ecopravo-Lviv representative, Olga Melen, met with the members of the Mission during their meeting with NGOs, where she handed to the Mission the Ecopravo-Lviv memorandum, giving our comments on the letter of the Ministry of Environment of Ukraine, presented to the European Commission.

The Mission will prepare a report on the results of their visit to Ukraine.

October, 15, 2004
Danube Case: another legal and reasonable decision

The hearing of the Supreme Commercial Court of Ukraine on the withdrawal of the straits and internal ponds from the Danube Biosphere Reserve took place on October 6, 2004.

During 20 minutes of court hearing the parties presented their arguments and demands. Judges decided to make a decision after several irrelevant and unclear questions of judge Ylitsky to the Kilijska region council that filed cassation appeal.

The appeal of the Kilijska region council was dismissed and the previous court decisions was left in force. Thus, the Supreme Commercial Court legalized withdrawal of lands and nullification of the State Act on permanent land use, issued to the Danube Biosphere Reserve.

The final decision, although, will take by the Supreme Court of Ukraine.

October, 15, 2004
Danube Case: new judges appear

The hearing of Kiev Сommercial Сourt on Ecopravo-Lviv suit challenging the environmental expertiza of the canal Danube – Black Sea building project through Bystre mouth, I-st phase took place on the 5th of October, 2004.

The hearing of the case was started from the beginning, as SE ”Delta Lotzman” has been involved into the case as the second defendant and the full bench was appointed.

The case will be considered by the full bench according to the decision of the head of the court, on the request of the judge O.M.Korotun. Such a step of the judge, according to her, was made due to the complexity of the case and nationwide importance of the canal construction.

As the new judges need to study materials of the case, the case hearing was scheduled on the 28th of October 2004.

September, 30, 2004
The Sixth Annual Meeting of the REPIN has been held

The Sixth Annual Meeting of the EECCA Regulatory Environmental Programme Implementation Network (REPIN) took place in Yerevan (Armenia) on September 26-28, 2004. The Network’s mission is to enable environmental authorities and other stakeholders in EECCA countries to provide protection of the environment and human health by developing and implementing effective environmental policies and legislation.

The meeting agenda included, inter alia, the discussion of the Integrated Environmental Permitting Guidelines for EECCA Countries. The analysis of the conditions and recommendations for a step-by-step introduction of an integrated environmental permitting system for specific manufacturing sectors in Ukraine were presented.

Ecopravo-Lviv (Natalia Andursevych, international affairs officer) presented results of the conducted feasibility study of the implementation of the Environmental Performance Rating and Information Disclosure Program in Ukraine. This rating system might be implemented in Lviv oblast as a pilot project already starting from the next year.

September, 15, 2004

Council of Europe says Ukraine violated Bern Convention

Expert from Convention on the conservation of European wildlife and natural habitats (Bern convention) Mr.Herve Lethier issued his report concerning shipping canal in the Bystroe arm.
Official visit of Danube delta took place from 22-25 July, 2004 in the presence of the head of Council of Europe Natural Heritage and Biological Diversity Division.
Expert points out the absence of economic evaluation and analysis (including alternatives), any risk studies, absence of precise data on expected affects of the works and the prevention and compensation measures envisaged, reminding about the conclusion of UNESCO/Ramsar on inadequate impact study. Thus the option of developing Bystre canal was taken without ecological costs being incorporated or economic analysis of the project.
The adverse affect of the project was listed as affect on species, particularly birds, natural habitats, delta landscapes and natural processes and river dynamics. It was strongly recommended to examine alternative solutions if greater depth thinking in the long term and follow the recommendations of UNESCO/Ramsar report. By the way, report declared the Bystre arm variant as the worst solution.

August, 13, 2004
Danube Commission concerned about canal construction by Ukraine. We received the response from the International commission for the protection of the Danube river (ICPDR) on our notification. Commission confirmed its concerns about the canal building project and the possible environmental effects it may have both in the Danube river and the Black Sea ecosystem.
The provisions of the Danube River Protection Convention require exchange of information on planned activities. For this reason, in December, 2003 at the ordinary meeting of ICPDR passed a resolution, expressing concern about this project and requesting information from Ukraine about the possible environmental impacts.
In early June, ICPDR again send Ukraine a letter requesting to stop the dredging until international review and discussion of the environmental impacts, as required by the Danube River Protection Convention will take place. In mid July, ICPDR President Catherine Day (representing the European Commission at the same time) and Philip Weller ICPDR Executive Secretary held a meeting with the Deputy Foreign Minister of Ukraine about this issue. It was agreed at that meeting that information about the project and the environmental impacts would be made available to the ICPDR for expert review. Some documents have been provided to both the ICPDR and to the European Commission. The ICPDR asked again for the project to be halted until these documents would be assessed. This didn’t happen.
The assessment of the documents by the ICPDR Secretariat revealed that they were not sufficient to evaluate the environmental impacts and to meet provisions of information exchange under the Danube Convention. Second written communication requesting additional information had been sent to Ukraine.
The ICPDR states that Ukraine failed to fully meet the information exchange obligations under the Danube River Protection Convention. For this reason, this question will be discussed during the Standing Working Group meeting of ICPDR in September, 2004.

On August, 5, 2004
The hearing of Kiev commercial court on Ecopravo-Lviv suit challenging the environmental expertiza of the canal Danube – Black Sea building project through Bystre mouth, I-st phase took place. The representatives of the defendant – the Ministry of Environmental Protection of Ukraine and the representative of the third party - “Delta Lotzman” were present.
In our suit we asked court, besides declaring expertise decision invalid, to give us the EIA documentation, that now is kept by “Delta-Lotzman”. Thus, the court decided to involve “Delta-Lotzman” as second defendant and the consideration of the case will start again at next hearing scheduled at October 5, 2004, as the judge takes holidays.
Its worth noting, that the judge tried to postpone hearing of the case until the Supreme commercial court decides our second appeal concerning challenging of ecological expertiza of TEG of investments. The hearing of this appeal is scheduled on October, 21, 2004.
Probably, the Supreme commercial court decision will precede the decision of Kiev commercial court concerning expertiza of building project and will play a decisive role for our case.

July 30, 2004
The case Danube – Black Sea: next hearing on ecological expertiza

Next hearing of the Ecopravo-Lviv suit against the Ministry of Environmental Protection of Ukraine challenging the conclusion of the state environmental expertiza №191 of the canal Danube – Black Sea building project is scheduled by the Kiev Commercial Court on August 5, 2004.
The court involved State Enterprise “Delta-Lotsman” as a third party intervener for defendant. However, “Delta-Lotsman” asked court to consider the case in their absence.

Danube-Black Sea canal: Courts reluctant to take decisions.

On June 29, 2004, the Kyiv Commercial court heard the case against the EIA of the canal Danube – Black Sea project. It was the second court hearing, and the court did not take any decision yet, despite the ongoing construction of the canal by the Ministry of Transport.

On June 30, 2004, the High Commercial Court of Ukraine heard the case on the withdrawal of the waters from the Danube Biosphere Reserve. This is the “second appeal” court. As no decision was taken it seems that the court is waiting for the political solution of the problem.

Ecopravo-Lviv has issued two publications on the European Union Environmental Law.

In June 2004 Ecopravo-Lviv has issued two new publications:

EPL expressed it concerns about construction of the Danube – Black Sea canal during the Third Meeting of the Parties of the Convention on Environmental Impact Assessment (Espoo Convention), held in Cavtat, Croatia, June 2-4, 2004.

At the High Level segment of the Meeting, Andriy Andrusevych, EPL Executive Director, stressed that ‘the latest example that brought attention of the whole European environmental community was construction by the Government of Ukraine of a navigable canal in the Ukrainian part of the Danube River Delta. The construction planning lacked any transboundary assessment and public participation’.

Just a few days before the 3rd Meeting of the Parties Romania filed with the Implementation Committee of the Convention an official complaint against Ukraine on the canal issue.

The Compliance Committee of the Aarhus Convention is considering the violation by Ukraine of the citizens’ rights in the process of the canal Danube – Black Sea construction.

Upon the communication from EPL, the Compliance Committee of the Aarhus Convention initiated official consideration of the violations by Ukraine of the citizens’ environmental rights in the process of planning and construction of the canal Danube – Black Sea. At its last meeting the Committee decided to send a letter to the Government of Ukraine requesting to comment on this matter.

The case Danube – Black Sea: appeal on the conclusion of the state environmental expertiza №191 of the canal Danube – Black Sea building project.

The first hearing of the Ecopravo-Lviv appeal to the Ministry of Environmental Protection of Ukraine, scheduled by the Kiev Commercial Court on May 25, 2004, did not take place due to the defendant’s failure to appear. The representative of the Ministry of Environment in this case is Mamula A.M., who is at the same time a representative of the Ministry of Transport.

We have filed the addition to the claim, giving grounds for the illegality of the conclusion of the state environmental expertiza №191 of the canal Danube – Black Sea building project and requesting the court to invalidate it. We argue that in the process of the expertiza conduction the defendant failed to comply with the principles of objectivity, scientific validity, publicity, complexity, considering public opinion. The assessment of the canal construction impact on the fishery and birds has not been conducted either.

The Ministry of Environment failed to ensure both the appropriate public information on the expertiza process, and the opportunity for the public to participate in the decision-making, violating our right to participation in the process of the expertiza conduction.

The hearing of the D. Skrylnikov’s appeal on illegal acts of the President of Ukraine.

On June 10, 2004, at 12:30 am the Kiev Appeal court will hear the appeal by the citizen Skrylnikov D.V. on the decision of the Kiev local court of the Pecherskiy district regarding the illegal acts of the President of Ukraine. D.V. Skrylnikov demands the invalidation of Decree of the President of Ukraine, that has amended the President’s Decree “On creation of the Danube Biosphere Reserve” – the case on the withdrawal of the straits and internal ponds. (The additional information on this complaint you can find in the news archive).

The reseeding hearings, scheduled on April 19 and May 17 did not take place due to the absence of the representatives of the Ministry of Transport of Ukraine and the illness of the judge.

On May 15 - 20, 2004 the 14th Annual Meeting of the Environmental Law Alliance Worldwide (E-LAW) took place in the Carpathian Mountains of Western Ukraine.

For the first time in E-LAW history the meeting has been held in Europe. 40 lawyers from 15 countries, from as far away as Swaziland in southern Africa and Chile in South America participated in the meeting.

The aim of the meeting was to establish the close cooperation and mutual assistance between environmental public interest lawyers from around the world in environmental problems solving and finding ways of inproving the state of enviroment, as well as to break the isolation of public interest advocates they face in their work. The participants gained a unique opportunity to meet and work together on solving common problems they face in protecting the environment and environmental rights.

During the meeting the participants presented the results of their work, exchanged their best experiences pursing environmental public interest law, discussed joined projects and cases, enlisted the support, received legal and scientific assistance and resources for their current work from the colleagues from other countries.
The Environmental Law Alliance Worldwide (E-LAW) gives public interest lawyers and scientists around the world the skills and resources they need to protect the environment through law. Grassroots lawyers from 10 countries founded E-LAW in 1989. Now more than 300 grassroots lawyers and scientists in 60 countries call on the E-LAW network for critical legal and scientific tools.

On May 20-21, 2004 the 9th International meeting of the Environmental Law Association of Central and Eastern Europe and the Newly Independent States (GUTA Association) took place in the Carpathian Mountains of Western Ukraine.

The participants of the meeting shred the successful experiences in their cases and implemented projects, discussed joined projects and the future cooperation prospects in the light of the European Union enlargement and the participation of the Association in the international processes.

Association was created as a result of the many years GUTA process, which consists of the annual conferences of the public interest environmental lawyers of the Central/Eastern Europe, Caucasus and Central Asia. The first conference was organized in 1995 in the small Carpathian village GUTA. From the name of this village originated the name of the organization. GUTA process is important for the development and support of collaboration and mutual help among the environmental lawyers of our region.

Stock Company "Комбінат Придніпровський", Злагода™ http://www.zlagoda.dp.ua/

On April, 19, 2004, the Ministry of Environment of Ukraine approved environmental expertiza Conclusion №191 Regarding the Building project of Construction of the Danube-Black Sea Deep-Water Navigation Canal on the Ukrainian Part of the Danube Delta-Stage I, through Bystre mouth. By this conclusion the Ministry gave positive evaluation of the building project and declared its realization environmentally acceptable.. The scientific ecological-expert evaluation of the building project, done by Kharkiv National University Named After Karazin, was the basis and integral part of the conclusion N191.

On May, 14, 2004, Charitable Foundation “Ecopravo-Lviv” filed an emergency complaint to the International Commission for the Protection of Danube river on violation of the Convention on Cooperation for the Protection and Sustainable Use of the Danube River by Ukraine. (Full version of the document)
The construction of canal in Bystre mouth and navigation in the Ukrainian part of Danube river will inevitably be accompanied by the shipping accidents, resulting in pollution of waters by oil, pesticides, other harmful substances, municipal and sewage wastes, introduction of alien species. Transboundary impact of canal construction is evident and apparent.
Ukraine failed to take measures to ensure efficient water quality protection and sustainable water use, prevent transboundary impacts and to take into account possible influences of the canal planning building on water resources and the conservation of ecological resources of the Danube River, which constitute the violation of art.5, 6 of the Convention.
Thus, we asked the commission to convene an extraordinary meeting of the Parties of the Convention, report on the issue concerning the implementation of this Convention by Ukraine, and consider elaboration of recommendations or decisions to stop the violation of the convention by Ukraine.
Ecopravo-Lviv additionally presented information concerning the Ramsar Convention Secretariat concerns, sent to Ukraine's President L. Kuchma, about the Government's project to build a navigable waterway through the Ukrainian part of the Danube Delta and WWF critics on these plans of Ukraine.

On March 22, 2004, Charitable Foundation “Ecopravo-Lviv” filed the suit to court against the Ministry of Environment of Ukraine. Ecopravo-Lviv alleged the violation of it’s right to information and right to participate in the process of environmental expertiza of the building project of the canal Danube-Black sea by the Ministry.

On May 6, 2004, Charitable Foundation “Ecopravo-Lviv” filed a complaint to the Compliance Committee of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus convention).
We alleged the violation of Aarhus convention provisions by Ukraine in the decision-making processregarding the construction of navigation canal Danube-Black sea through the territory of UNESCODanube biosphere reserve.
In particular, the Ministry of Environment of Ukraine during the state environmental expertizaregarding the TEA of Investments of construction of the Danube-Black Sea deep-water navigation canalviolated the right of the public to participate in environmental decision-making. This rightconstitute of timely and adequate informing of the public of the proposed decision, provision of theaccess of the public to information relevant to the decision-making process, collecting of publicopinion and due account of the outcome of public participation in the decision.
The Ministry failed to perform the aforementioned requirements and violated Aarhus convention, thuswe asked the Committee, inter alia, make recommendation to Ukraine regarding the implementation ofthe Convention. (Full text document)

The Supreme Commercial Court of Ukraine scheduled the hearing of the cassation appeal of Kilijska region council on the ruling of Commercial Court of Odessa oblast on June, 30, 2004. The council considers the nullification of the State act on the right to permanent land use, issued to Danube Biosphere Reserve soundless and illegal.

Three judges with presiding judge Lvov B., during 40 minutes considered the arguments of the plaintiff and the defendant and invalidated the ruling of local commercial court of Kiev.

The ruling of the local commercial court of Kiev established violation of the right of Ecopravo-Lviv to participate in the state ecological expertise by the Ministry, violation of the legislation on state ecological expertise by the Ministry, absence of the names of experts in expertise decision, absence of clear evaluation of the EIA documentation by the Ministry (positive or negative), and absence of the determination of the conformity of the planned activity with national legislation.

We are going to appeal the appellate court ruling as soon as we receive the full version of it.

Successes, experience and significant growth of EPL sum up these ten years. We express our
gratitude to all whom worked with us, supported and inspired us on the road of environmental protection and achievement of the rule of law in Ukraine.

On January 12, 2004 the the Kiev local court of the Pecherskiy district has rendered a decision to dismiss the complaint of the citizen D. Skrylnikov on the invalidation of Decree of the President of Ukraine, that has amended the President’s Decree “On creation of the Danube Biosphere Reserve”. (The additional information on this complaint you can find in the news archive).

The judge has stated, that “with regard to the nature of the changes to the Decree of 10.08.1998, the court does not consider that any changes have been made to the borders, category or status of the Danube Biosphere Reserve”.

The court practically omitted the issue of compliance with the legislation during the adoption of the challenged Decree. The court has based it decision on the verbal explanations of the Ministry of Environment and Ministry of Transport regarding the so called “editorial correction” of the Decree, that has not been confirmed by any profess.

The judge does not consider the adoption of the challenged Decree to be violating rights or legitimate interests of the claimant. Although, the claimant believes, that conservation of the Danube Biosphere Reserve – the Nature Protection Fund territory, unique not only for Ukraine but for Europe in general, – preservation of quality and integrity of its territory, as well as conservation of its biodiversity, are the important issues for every citizen and for him particularly. Therefore, В. Skrylnikov persists in stating that his rights and legitimate interests are violated by adoption of this Decree (the aim of which is to assist in settling the issue of Danube-Black Sea canal construction, literally, the future usage of the valuable territories of nature in the economic purposes), and is going to appeal the court decision.

The defendant (the Ministry of Environment Protection of Ukraine) has been represented by A. Mamula, lawyer of the Ministry of Transport of Ukraine. The Minister of Environment Protection of Ukraine S. Polyakov has signed his power of attorney personally. Mr. Mamula continued denying the violation of the Law of Ukraine “On the Environmental Expertiza” by the environmental expertiza conclusion. He persisted that the requirements of this law regarding the conduction of the environmental expertiza are not applicable to the state environmental expertiza.

Answering the questions of the judge, on how the Ministry of Environment considers the environmental expertiza conclusion, the Head of the Ministry Department of Environmental Audit, Expertiza and Insurance, S. Kalynovskiy, stated, that the conclusion is positive under the condition of zoning change. We expressed to the court our objections, that, despite the fact that the zoning has not been changed, the Project of canal construction has already been submitted for the environmental expertiza to the Ministry of Environmnent and the Statement of activity's environmental impact was already announced in the newspaper “Holos Ukrainy”. Mr. Kalynovskiy replied that, despite the submission of the documents, the environmental expertiza would only begin after the zoning changes.

The defendant, in the support of his arguments, informed the court about the international experts conclusions approving the canal construction, and provided the copy of the conclusions to the judge. By the “experts conclusions” he meant the decisions of the experts, invited by the Ministry of Transport to the conference in Odessa. These conclusions are not official. Only the conclusions of the UNESCO and Ramsar experts, officially invited to Ukraine by the Ministry of Foreign Affairs of Ukraine and the Ministry of Environment Protection of Ukraine, are official. These experts have already expressed their disapproval of the canal construction through the Bystre mouth. These conclusions will be soon available on the UNESCO website.

The defendant’s representative did not appear at the hearing, therefore, the discussion with the judge was mostly informal.
The judge stated that the canal construction cannot be started, according to the conclusion №105, unless the new zoning of the Danube Biosphere Reserve is carried out. He believes, that the conclusion is positive with a condition – withdrawal of the Bystre mouth from the core protected zone of the Reserve during the new zoning conduction. It is stated in the paragraph. 3.13 of the Regulation on the State Environmental Expertiza conduct: “if necessary, the approval (the positive conclusion) could maintain a condition on revision of certain issues, making corrections, implementation of which does not require substantive revision, expenditure of costs, time and could be checked by the Ministry in the work order”. The judge considers that the conclusion №105 falls under this requirements, unless we prove the contrary: that changes in zoning are not “unsubstantial revision”.
We have provided to the court the additions to the claim, stating the conclusion is to be declared invalid, as it is signed by the unauthorized person – Deputy State Secretary. The court requested the defendant to provide the documents, proving the authority of above mentioned person to sign the state environmental expertiza conclusion.
The next court hearing is scheduled on January 27, 2004.

The court hearing of the Kiev local court of the Pecherskiy district regarding the complaint of the citizen D. Skrylnikov on the Decree of the President of Ukraine, that has amended the President’s Decree “On creation of the Danube Biosphere Reserve”, withdrawing the straits and internal ponds from it, has continued on the December 16, 2003. (The additional information on this complaint you can find in the news archive).

The parties present at the court hearing: the plaintiff, defendant’s representative (the representative of the Ministry of Justice of Ukraine), representatives of the Ministry of the Environment and Natural Resources of Ukraine and the Ministry of Transport. The representative of the Ministry of the Environment and Natural Resources of Ukraine stated that the changes to the President’s Decree were the ordinary “editing”, that does not require the Ministry’s approval. The Ministry of Transport also informed that they have discovered the “mistake”, made by including the straits and internal ponds in the Decree “On creation of the Danube Biosphere Reserve” and applied to the President for its correction. (It is rather strange, why the mistake was corrected in favour of straits and internal ponds withdrawal, not in favour of the nature conservation, and who should responsible for such a mistake?) Unfortunately the judge was not willing to investigate whether it was really a mistake and rejected the plaintiff’s petition to request the Ministry of the Environment and Natural Resources of Ukraine to provide materials, on which the creation of the Danube Biosphere Reserve was based. These materials, however, should contain the appropriate maps, scientific groundings, verifying what and for which purpose was included in the reserve.

Interesting was also the position of the representative of the Ministry of the Environment and Natural Resources of Ukraine (vise deputy of the State Reserve Management Service of Ukraine Mr. Komarchuk S.S). He insisted that the straits and internal ponds have not lost anything in their legal status, and, in the contrary, will be even better protected as the lands of the water fund and protected coastlands, under the Water Code.

It was also studied during the court hearing how plaintiff’s rights and legal interests could be violated by the adoption oh the above mentioned Decree.

The second court hearing of the Commercial Court of Kyiv on the Ecopravo-Lviv’s appeal to the Ministry of Environment Protection of Ukraine took place on December 16, 2003.

The defendant unreasonably stated that the transfer of the Environmental Impact Assessment documentation to the T. Shevchenko Kiyv National University for the expert evaluation by the Ministry official request is not the beginning of the environmental expertiza. After the clarification questions of the judge the plaintiff, however, admitted that the Environmental Impact Statement has been announced after the environmental expertiza began.

Answering the judge questions on the reasons of absence of the introductory, findings and conclusions parts in the conclusion, disregarding the requirements of the article 34 of the Law “On the Environmental Expertiza”, the defendant stated that the Ministry did not followed the requirements of this Law as it was conducting the state environmental expertiza, no the environmental expertiza. The defendant believes them to be totally different. Such interpretation of the law by the defendant clearly surprised the judge, provided that state environmental expertiza is considered to be one of the forms of the environmental expertiza by the article 12 of this Law. The judge did not succeed in his attempt to explain defendant provisions of law and the conclusion’s clear structure requirements.

The judge also raised the question on the appropriateness of such expertiza conduction, taking to account the own wording of the conclusion, that the impact was assessed “…disregarding the existing zoning of the Reserve (the core protection status of the Bystre mouth)…”. It is very contradictory, as the new zoning was not made, and the implementation of the project under the existing zoning violates articles 16 and 18 of the Law of Ukraine “On the Nature Reserve Fund of Ukraine”. The defendant could not explain this either. She stressed that the Ministry adopted conclusion №105 as positive, based on the statement of the relative scientist of Kiyv National University, who have developed this conclusion, that the canal construction is possible.

The judge has announced a break to study the materials provided by the parties. The next court hearing is scheduled on 23.12.2003.

The public of Lviv oblast have being persuaded for the long time that the Hungarian hazardous waste in the amount of 3 000 ton are been imported to Ukraine with the aim of experimental incineration on the Dobtotvirska Thermal Power-station. In case the test is successful, the Hungarians will provide us with the tar neutralization technology, worth up to 2,5 million USA dollars.

On the request of Ecopravo-Lviv the Ministry of Environment and Natural Resources has send documents on the approval of hazardous wastes (“neutralized tar residues”) import to the territory of Ukraine. As it was discovered in these documents, the aim of the wastes import does not match the one, we were confirmed by the company “OSMA-Oil” and State Administration of Environment and Natural Resources in Lviv oblast.

As it turned out, there are no remarks in the contract of the conduct of any experiment, which is stated by the State Administration and the Lviv oblast Sanitary Epidemiological Station. Instead, the letter of the Station, by which the Hungarian tar import was approved, states another purpose of the import – “import of the products of the industrial purpose”. The original contract provides for the obligation of the implementing party to utilize the wastes. Besides, the code of the wastes, provided in the contract, corresponds to the acid tar according to European Wastes Catalogue (EWC 050107).

The received documents also doubt the amount of the imported wastes. The approximate amount of the imported wastes, as provided in the contract, is 60 000-70 000 ton, and only at the bottom it has the note, made by hand with the pencil, about the announced 3 000 ton. Therefore, the question raises – what is the legal effect of the information in the contract, that has been crossed out and written by hand?

As we know, about 17 000 ton of wastes have been imported to the Lviv region already. Besides, the import of the above mentioned tar residues, the Ministry has approved the import of another 4 000 ton of hazardous wastes – the maleic anhydride residues. In such way, soon Ukraine will utilize all Hungarian wastes, assisting Hungary in meeting the environmental requirements acceding European Union.

On our lawyer’s opinion, such an import of wastes to Ukraine and the corresponding documents violates not only the national legislation, but also the requirements of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

The first court hearing of the Commercial Court of Kyiv on the Ecopravo-Lviv’s appeal to the Ministry of Environment Protection of Ukraine took place on December 2, 2003. To remind you, Ecopravo-Lviv filed an appeal on the invalidation of environmental expertiza conclusion №105 (regarding the Technical and Economic Assessment of Investments for development of the Danube-Black Sea deep-water navigation canal on the Ukrainian part of the Danube delta) The parties present at the court hearing: the plaintiff’s representative Olga Melen, and the defendant’s representative L.Kalenichenko.

The plaintiff produced the arguments to the court regarding the violation of law by the environmental expertiza conclusion, in particular, article 34 p.2 of the Law of Ukraine “On Environmental Expertiza” and the pp.3.2, 3.13 of the Regulation on Conduction of State Environmental Expertiza (approved by the Ministry of Environment and Nuclear Safety on 07.06.95 №55) and articles 13,16,18 of the Law of Ukraine “On the Natural Reserve Fund of Ukraine”

The defendant brought the statement of defense, where explained that non violation of the point 2 article 34 of the Law of Ukraine “On environment expertiza” by the fact that the date of the environment expertiza conduction is the date of its official conclusions, in other words the 10.07.03, while the activity environmental impact statement was announced before the conduct of the environmental expertiza (3.07.03.), not after. Besides, the defendant stressed, that the article 11 of the Law “On Environmental Expertiza” provides for the possibility, not the obligation of public participation in the environmental expertiza. The defendant stated, that the right of public participation in the environmental expertiza, according to the article 13 of the Law “On the Natural Reserve Fund of Ukraine” provides for the right to participate only in the public, not the state environmental expertiza. Besides, the defendant’s representative could not reply to the questions, regarding the environmental expertiza itself, but stated, that the Ministry considers this conclusion as “positive”.

The judge expressed the opinion that the absence in the conclusion of the stating of what the conclusion is considered to be (positive, negative, subject to revision), is not a substantial violation. The court also requested the plaintiff to explain in writing which rights are violated by this conclusion. The next court hearing is scheduled on 16.12.2003.

On November 27, 2003 the regular court hearing regarding the complaint of the citizen D. Skrylnikov on the Decree of the President of Ukraine, that has amended the President’s Decree “On creation of the Danube Biosphere Reserve”, withdrawing the straits and internal ponds from it. (The additional information on this complaint you can find in the news archive).

The parties present at the court hearing: the plaintiff, defendant’s representative (the representative of the Ministry of Justice of Ukraine) and the representative of the Ministry of the Environment and Natural Resources of Ukraine (brought to the case on the previous court hearing on the request of the defendant’s representative). The representative of the Ministry of the Environment and Natural Resources of Ukraine stated that the above mentioned changes were not submitted for the considerations and not approved by the Ministry. Both, the representative of the Ministry of the Environment and Natural Resources of Ukraine and the defendant’s representative filed a request to bring to the case the Ministry of Transport of Ukraine, that has initiated these amendments and the withdrawal of the straits and internal ponds from the Danube Biosphere Reserve. Due to this, the court hearing has been postponed till the December 16.

Comments: This confirms again, that the changes were initiated by the Ministry of Transport of Ukraine, which is lobbing the withdrawal of the straits and internal ponds from the Danube Biosphere Reserve ignoring the legal procedure, exactly what the plaintiff is invoking.

The judge of the Commercial Court of Odessa oblast, Maliarchuk I.A., has pronounced the introductory part and the judicial disposition of the decision in Vilkivska city council versus Kilijska region council case on the November 24, 2003. The plaintiff demands the invalidation of the state act on the right to permanent land use for 2541 hectares of straits and internal ponds (issued to Danube Biosphere Reserve in 2000), and return of this land to the Vylkivska city council’s land fund. The Danube Biosphere Reserve is the third party intervener for defendant. The court made a decision to satisfy the plaintiff demands in part: to find illegal the decissions of Kilijska region council and the state act on the right to permanent land use, issued to Danube Biosphere Reserve. The decision will come into force in ten days, from the date of the decision processing in the form required (processing the introductory, descriptive, declaration parts and judicial disposition of the decision), and signing it by the judge.

We would like to notice, that the plaintiff changed his arguments and the position in the case few times, unreasonably stated the violation of the Vylkovo territorial community communal ownership right, did not file the petition to resume the of limitation period for filing the claim, could not base his position and groundings.

It is unknown how the judge will motivate her decision, as the declaration part of the decision will be introduced to the parties only in few days. The decision, before it enters into force, in particular, for ten days starting from the date of its signing by the judge, is subject to appeal. Nevertheless, the right to appeal, as provided by the Commercial Procedural Code of Ukraine, belongs only to the parties of the case. The Danube Biosphere Reserve, as it is not the party in the case, does not have this right. Therefore, the appeal could be only submitted by the defendant - Kilijska region council, or the plaintiff. We hope that Kilijska region council would decide to continue the fight, now in the appeals instance.

The Kiev Commercial Court has decried to start the proceeding on the Ecopravo-Lviv appeal to Ministry of Environment Protection of Ukraine on the invalidation of environmental expertiza conclusion №105 (regarding the Technical and Economic Assessment of Investments for development of the Danube-Black Sea deep-water navigation canal on the Ukrainian part of the Danube delta). The court hearing is appointed on 02.12.03.

Present parties: 4 representatives of plaintiff (Vylkivska City Council), defendant’s representative (Kilijska Region Council), the Director and representative of the Danube Biosphere Reserve (the third party intervenor for defendant) and also officials of Odessa Oblast State Administration Division of Land Resources and representative of Kilijska Region Department of Land Resources on the side of the defendant. Ecopravo-Lviv lawyer Olga Melen’ represented the Danube Biosphere Reserve.

The plaintiff stated that the following rights of Vylkovo territorial community has been violated: the right to hold, use and dispose the property that belong to them on their own discretion and in their interest, directly or through the local government (the right of communal ownership), the right to make decisions on issues of local significance. At the same time, the plaintiff claimed the increase of his demands: the invalidation of Kilijska Region Council’s decisions and the state act on the right to land use, issued to Danube Biosphere Reserve, in full.

The judge, having heard the arguments of the parties, stated that there are enough documents and arguments to for the substantive judgment. The final court hearing, to decide the case on merits, is appointed on 19.11.03.

The third court hearing of the Commercial Court of Odessa oblast on Vylkivska city council’s suit against Kilijska region council took place on the October 30, 2003. Ecopravo-Lviv lawyer Olga Melen’ represented the Danube Biosphere Reserve.

The plaintiff demands the invalidation of the state act on the right to permanent land use for 2541 hectares of straits and internal ponds (issued to Danube Biosphere Reserve in 2000), and return of this land to the Vylkivska city council’s land fund.

The plaintiff representatives did not appear in the court, although the claim was heard in their absence. The next court hearing is appointed on 13.11.2003.

To remind you, Vylkivska city council, after the previous unsuccessful attempt, has resubmitted the claim to the Commercial Court of Odessa oblast against Kilijska region council on September 23, 2003. The aim of this process is evident: to help the construction of the canal Danube – Black Sea through the core protected zone of the Danube Biosphere Reserve, opposed by the environmentalists of Ukraine.

Ecopravo-Lviv signed the Memorandum of Understanding on the Center of Excellence with IUCN-CEL (Commission on Environmental Law of the World Conservation Union), ELC (Environmental Law Center) on November 7, 2003 in Shanghais, China. The Memorandum of Understanding defines the scope of cooperation between these institutions. The Parties of the Memorandum will cooperate to build a network of institutions and experts on environmental law throughout Ukraine and Eastern Europe and to establish additional “Centers of Excellence” in environmental law in Eastern Europe, will take measures to establish and enhance environmental law, etc.

At its recent meeting (held in Carpathian Mountains in Ukraine, May 13-15, 2003) the IUCN CEL Steering Committee unanimously endorsed Ecopravo-Lviv as an IUCN CEL “Center of Excellence”. “Centers of Excellence” on environmental law mean institutions, which collaborate with universities, law schools, and participate in the environmental law formation at national and international levels.

‘The Espoo Convention Work Plan for the next years has to include a clear commitment to involve the NGOs into promotion of the implementation of the Convention’, Andriy Andrusevych said at a recent meeting of the Espoo Convention Working Group in Geneva. Representing over 300 environmental NGOs from Europe, united into ECO Forum coalition, Mr. Andrusevych spent 3 days in Geneva to raise citizens’ concerns and interests during the negotiations under the Espoo Convention.

The Work Plan of the Espoo Convention, to be adopted next year a the 3rd Meeting of the Parties of the Convention – a body that has the highest authority within the Convention – was one of the issues discussed in Geneva last week.

The Implementation Committee (IC) of the Convention, that has power to overview the implementation of the Convention, as well as to consider any cases of possible non-compliance with the Convention by the Parties. The public sees the Implementation Committee as a promising forum to raise and protect citizens’ interests. These negotiations could have resulted in the adoption of the proposals by the IC that included a presumption of closure of its meetings, no right of public to initiate non-compliance issues, etc. However, strong objections expressed at the negotiations left the IC with the need to re-consider its proposals.

In particular, at the negotiations Andriy Andrusevych said: ‘[The] IC makes further conclusion in its reports that a presumption of closure of the meetings of IC where the non-compliance issues are discussed. In our view, this conclusion clearly contradicts the Rules of Procedures of the Convention…. Apart from the legal issues, transparency and openness are key elements of the modern democracy concept. These principles shall be equally implemented by individual countries and the international community as well’.

Pechersky local city court of Kyiv accepted for the consideration an individual complaint by Skrylnikov D. challenging legality of the Decree of the President of Ukraine that put into law the decision June 6, 2003, by National Security and Defense Council “On the status of the implementation of the President’s of Ukraine Decree ‘On creation of the Danube Biosphere Reserve and on the perspectives of the construction of the navigable canal Danube- Black Sea”.

Paragraph 3 of this Decree made an amendment to the President’s decree of August 10, 1998, “On creation of the Danube Biosphere Reserve” that excluded from the wording of the territory of Reserve all internal waters and straights and 2-km aquatorium of the Black Sea.

Not a secret that these changes were initiated by the Ministry of Transport that has lobbied for a long time the project for construction of a canal Danube – Black Sea through the core protected area of the reserve. These plans are widely objected by the NGO community in Ukraine and worldwide.

The plaintiff claims that paragraph 3 of the challenged Decree was adopted with violation of the established procedures for change in area, category and cancellation of the status of protected areas in Ukraine and violates citizens’ rights in interests.

‘Even the President of Ukraine cannot change the limits or cancel the status of the protected areas without complying with the procedures established by law’, says the plaintiff.

The respondents did not show up for the court hearing set for September 26, 2003. Next court hearing is scheduled for October 16th. It must be stressed that according to the Civil Procedure Code any governmental decision that is challenged in court is automatically suspended.

Ecopravo-Lviv has launched a new, re-constructed web-page. The web-page contains extensive information about our organization, our main activities as well as general useful information. In particular, you can find here Report on the State on Environment in Lviv Region for 2002, work plan of the local environmental impact assessment authorities, environmental calendar etc.

11 residents from Vilshyna settlement, situated next to the waste tailings of a nearby coal enrichment factory in Lviv region, Ukraine, applied to the European Court of Human Rights claiming violation of their rights to home and to respect for private and family life.

The territory where they live is polluted with heavy metals, including mercury, cadmium, iron. The concentration of these metals exceeds safe levels 6-25 times.

Because of the soil sinking the houses of people are constantly underflooded, sometimes truing into islands for the whole summer.

The residents of the settlement are deprived access to drinking water for many years. The water in their wells cannot be used for any purposes, even residential use. The drinking water is brought to them irregularly and in not sufficient quantities.

The decision for the resettlement of the residents of Vilshyna settlement was taken back in 1994. This decision was followed up by a number of other decisions by local authorities. However, none of them was implemented. All local authorities recognize the fact that citizens cannot live there. However, for more than 9 years no moves were made from their side to protect rights of the citizens.

The residents applied to the European Court of Human Rights without exhausting national remedies. The reason is that the national court where they applied, has not scheduled the first hearing for more than one year already.