Canal Danube- Black Sea: the regular court hearing of the Kyiv Commercial Court regarding the EPL’s appeal on the environmental expertiza conclusion №105 took place on December 16, 2003.
December 30, 2003

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.

Canal Danube - Black Sea: the court hearing on December 16 regarding the complaint of the citizen D. Skrylnikov on the Decree of the President of Ukraine
December 26, 2003

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 next hearing is scheduled on January 12, 2004.

Canal Danube- Black Sea: second court hearing on the EPL appeal on the environmental expertiza conclusion took place
December 23, 2003

The second court hearing of the Commercial Court of Kyiv on the EPL’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.

As it turned out, the information on the Hungarian neutralized tar import into Ukraine, been imposed on the Lviv public for the long time, is not “precisely” correct.
December 8, 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 EPL 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.

Canal Danube- Black Sea: the first court hearing on the EPL appeal on the environmental expertiza conclusion took place
December 8, 2003

The first court hearing of the Commercial Court of Kyiv on the EPL’s appeal to the Ministry of Environment Protection of Ukraine took place on December 2, 2003. To remind you, EPL 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.

Canal Danube - Black Sea: the regular court hearing regarding the complaint of the citizen D. Skrylnikov on the Decree of the President of Ukraine
December 1, 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.

Canal Danube- Black Sea: the court decision on the case regarding the withdrawal of straits and internal ponds from the Danube Biosphere Reserve has been rendered
November 27, 2003

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.

Canal Danube- Black Sea: EPL appeals the environmental expertiza conclusion of deepwater navigation canal construction on the Bystre mouth.
November 19, 2003

The Kiev Commercial Court has decried to start the proceeding on the EPL 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.

Canal Danube- Black Sea: last court hearing of the of the Commercial Court of Odessa oblast regarding the withdrawal of straits and internal ponds from the Danube Biosphere Reserve took place on the November 13.
November 17, 2003

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. EPL 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.

Canal Danube – Black Sea: the third court hearing regarding the withdrawal of straits and internal ponds from the Danube Biosphere Reserve.
November 12, 2003

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. EPL 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.

EPL signed the Memorandum of Understanding on the Center of Excellence
November 7, 2003

EPL 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 EPL 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 meeting of the Espoo Convention Working Group
November 2, 2003

‘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’.

Protection of national heritage – a unique Danube Biosphere Resrve – is a duty of every citizen!
September 27, 2003

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.

EPL launched a new web-page
September 20, 2003

EPL 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.

Vilshyna residents applied to the European Court of Human Rights
September 16, 2003

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.

EPL lawyers are representing the interests of the residents.