Transcript Hand Carrying Earth

HUMAN RIGHTS AND
ENVIRONMENTAL
PROTECTION
Marija Milošević
Sonja Stanišić
Bojana Nedović
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• Evolution of Environmental Law
• The right to a Healthy Environment - Regulations and Practice of
the European Court of Human Rights
• The right to a Healthy Environment - Regulations and Practice in
Serbia
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Evolution of environmental law
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Third generation of human rights - the rights of solidarity
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Stockholm Declaration on the Human Environment in 1972
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Basle Convention in 1992
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Rio de Janeiro summit, Agenda 21 in 1992
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Millennium summit in 2000
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Earth Summit 2002, Johannesburg
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Kyoto protocol, came into force in 2005
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African Charter on Human and Peoples' Rights
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Additional protocol to the American Convention on human rights in the area of
economic, social and cultural rights "PROTOCOL OF SAN SALVADOR"
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The Aarhus Convention, entered into force in 2001
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The right to a Healthy Environment - Regulations
and Practice of the European Court of Human
Rights
The relevant European instrument
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The Council of Europe and European Human Rights Convention
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Jurisprudence in the area of indirect protection of the environment
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Article 8, Article 1 of Protocol 1
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Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home
and his correspondence
2. There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.
Protocols 1.
ARTICLE 1
Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the
public interest and subject to the conditions provided for by law and by the
general principles of international law.
The preceding provisions shall not, however, in any way impair the right of
a State to enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure the payment of
taxes or other contributions or penalties.
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Cases
• Powel and Rayner vs. United Kingdom (1990)
• Lopez Ostra Vs. Spain (1994)
• Fadajeva vs Russia
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Article 13 and article 6
Article 13 – Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed
by persons acting in an official capacity.
Article 6 – Right to a fair trial
1. In the determination of his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be pronounced publicly but the press and
public may be excluded from all or part of the trial in the interests of morals, public order or
national security in a democratic society, where the interests of juveniles or the protection of the
private life of the parties so require, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty
according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in detail, of the
nature and cause of the accusation against him;
b) to have adequate time and facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require;
d) to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or speak the
language used in court.
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Cases
• Herrick vs. United Kingdom
• Svidranova vs Slovak republic
• Guerra and others vs. Italy (free access to
environmental information)
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The right to healthy environment
Regulations and practice in Serbia
Strategies and action plans on environmental
protection
• The Proposed of National Environment Program
• Sustainable Development Strategy with action plan
• National Economic Development Strategy of the Republic of Serbia 2006-2012
• Energy Development Strategy until 2015
• The strategy of cleaner production
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National Program for Integration into the European
Union and the harmonization with the acquis communautaire
• Law On Environmental Protection
• Law On Environmental Impact Assessment
• Law On Strategic Environmental Impact Assessment
• Law On Integrated Prevention and Control of Environmental Pollution
http://www.lexadin.nl/wlg/legis/nofr/eur/lxweser.htm
The Integrated Pollution Prevention and Control Directive
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Legal rules and their application
The right to a healthy environment is guaranteed by the Constitution of the Republic of
Serbia, Article 74:
Everyone shall have the right to healthy environment and the right to timely and full
information about the state of environment. Everyone, especially the Republic of Serbia
and autonomous provinces, shall be accountable for the protection of environment.
Everyone shall be obliged to preserve and improve the environment.
Ministry of Environment, Mining and Spatial Planning
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Provisions within -The Law on Environmental Protection- specifies Article 74
Subjects of the Environmental Protection System
Article 4
The environmental protection system shall be carried out, within their respective
competencies, by:
1) The Republic;
2) Autonomous Province;
3) Municipality, i.e. the city (hereinafter “local self-governance body”);
4) Companies, other domestic and foreign legal entities and entrepreneurs who use
natural values in their economic and other activities, to endanger or pollute the environment
(hereinafter “legal and natural entities”);
5) Scientific and expert organizations and other public services;
6) Citizens, groups of citizens, their associations, professional and other
organizations.
All the subjects of the environment system shall be obliged to preserve and develop
the environment.
Subjects’ Liabilities
Article 5
In the realization of the environmental protection system, the Republic, Autonomous
Province, local self-governance body, legal and natural entities shall be responsible for every
activity with which they change or may change environmental status and conditions, i.e. for
failing to implement environmental protection measures in compliance with the law.
In performing their activities, legal and natural entities are obliged to provide: rational
use of natural resources, calculation of environmental protection expenditures in their
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investment and running costs, implement regulations, namely take environmental protection
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Access to Information
Article 78
State authorities, those of the autonomous province, local self governance units and
authorized and other organizations shall be obliged to regularly, timely and objectively
inform the public on the environmental status, namely phenomena monitored in
keeping with the monitoring of imission and emission and warning measures or
development of the pollution which may pose threat to human life and health, in
compliance with this Law and other regulations.
The public is entitled to access of statutory registers or records containing the
information and data in compliance with this Law.
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Judicial protection of the environment
Civil law protection of the environment
Article 103
Polluter causing environmental pollution shall be responsible for the occurred
damage under the principle of objective responsibility.
Legal and natural entity that through their illegal or inadequate acting has
enabled or allowed environmental pollution shall also be responsible.
Article 104
Polluter causing environmental pollution by its acting or non-acting shall be
obliged to, without any delay, undertake measures determined by
rehabilitation and plan of protection from accident, namely to undertake
necessary measures in order to reduce damage in the environment or
eliminate further risks, hazard or rehabilitation of the damage in the
environment.
f the damage made to the environment cannot be rehabilitated through
adequate measures, the person that has caused it shall be responsible to pay
charge equivalent to the value of the destroyed good.
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Article 107
Every person affected by damage shall have right to reimbursement.
The request for reimbursement may be submitted directly to the polluter or
insurer, namely to the financial guarantee of the polluter where the accident
happened, if such insurer, namely financial guarantee exists.
If several polluters are responsible for the environmental damage, and if it is
not possible to determine share of certain polluters, the costs shall be borne
jointly and individually.
The procedure for reimbursement shall be out-of-date in three years period
since the damaged party found out about the damage and damage maker.
However, this claim shall be out-of-date in 20 (twenty) years after the
occurrence of the damage.
Court procedure for reimbursement shall be urgent.
The Republic shall keep the right to reimburse the means if there are no other
persons with such right..
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Criminal law protection of Environmental Law
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Criminal Code of the Republic of Serbia - Chapter XXIV of the Code
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Ecological criminal acts are illegal, socially dangerous behavior of individuals
which are directed against the environment and for which the law provides criminal
sanctions
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8 years
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Mild Penal policy
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Challenges
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In Serbia strategic objectives in the field of environment are not defined and the
National Strategy on environmental protection has not adopted.
The pace of reforms in the process of harmonization with the EU is extremely slow.
The sectors that deal directly with ecology is allocated only 0.4 percent of the
budget of the Republic of Serbia.
Monitoring system of the environmental situation in Serbia must be promoted.
Only 3 percent of Serbian citizens consider that the environment protection is
priority.
The state must find a fair balance between economic interests and protection the
right of the individuals to a healthy environment.
Criminal courts are ineffective when the protection of the environment is in
question
Each district court in Serbia does not comply with the provisions of the freedom of
access to public information concerning the protection of the environment.
There is inadequate cooperation between bodies of government in the proof process
in criminal proceedings.
Criminal Procedures in the field of environmental protection have been ineffective,
and criminal policy is extremely mild.
Positive regulation in the field of environmental protection is not consistently
applied.
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