Referring to the constitutionally guaranteed right to a healthy environment, a citizen from Kumanovo asks the Administrative Court to make a decision that establishes that his constitutionally guaranteed right to a healthy environment has been violated and obliges the state to undertake all obligations for the protection of the environment.
The violation of the right to a healthy environment, the citizen points out, is due to the state’s failure to provide conditions for a healthy environment, that is, quality ambient air and timely and accurate information about the quality of ambient air.
The citizen’s case came before the Administrative Court for the third time, after the Supreme Court returned the case to the Administrative Court for re-decision.
“Every person has the right to a healthy environment”
In the proposal submitted to the Administrative Court, it is indicated that every person has the right to a healthy environment and that in accordance with the Constitution, the Republic provides conditions for realizing the right of citizens to a healthy environment.
Despite the fact that he felt that his right to a healthy environment was hindered and denied and he was informed through the public media about the frequent air pollution, i.e. the low air quality in Kumanovo, the citizen emphasizes that he did not have the opportunity to address any competent authority with in order to exercise his right.
“The state’s obligation is to provide conditions for enjoying the right to a healthy environment”
He points out that the state has not taken actions to realize the right to a healthy environment and that in accordance with the Law on Administrative Disputes, it is necessary for the Administrative Court to make a decision that will ensure judicial protection of freedoms and rights.
“It is the state’s obligation to provide conditions for enjoying the right to a healthy environment,” explains the proposal to the Administrative Court, which refers to the constitutional provisions and the Law on Administrative Disputes.
According to the Law on Administrative Disputes, the protection provided by the Administrative Court is regulated in accordance with this law, if the freedoms and rights guaranteed by the Constitution are violated by the action of an official in a state administration body, i.e. a responsible person in an enterprise, institution or in another organization or community, which, contrary to the law, directly prevents or limits an individual, organization or community, the exercise of freedom or right.
In that sense, the basis of the proposal to the Administrative Court is protection from illegal action – failure to take action to fulfill the legal obligation to ensure conditions for realizing the right to a healthy environment.
Obligations are not respected and laws are continuously violated
In the submitted act, the citizen indicates the legal and by-laws that must be respected to protect the right to a healthy environment, but which, despite the obligation, the state does not respect. In the proposal to the Administrative Court, evidence is also attached in order to present the complete factual situation.
The Law on the Environment, the Law on Ambient Air Quality, the Decree on Limit Values for Levels and Types of Polluting Substances in the Ambient Air and Alarm Thresholds, the Rulebook on the Content and Method of Transmission of Data and Information on Situations in the Management of Ambient Air Quality air, are part of the regulations that are continuously violated.
The obligation to adopt strategic documents for ambient air quality is not respected, nor is consistent monitoring of ambient air quality and emission sources carried out.
There is an exceeding of the limit values for levels and types of polluting substances in the ambient air and there is no notification or alarm for exceeding the threshold.
The actual situation, through the monthly reports of the Ministry of Environment and Spatial Planning, indicates that it was obviously missed to take all the necessary measures and conditions were not provided to prevent exceeding the limit values for polluting substances in the ambient air.
In the proposal, it is also pointed out that the obligation to establish a Single Cadastre for the environment is not respected, and the due inspection legal supervision is not carried out. At the same time, the strategic documents for ambient air quality have not been adopted either.
According to the ECHR, environmental protection rights are recognized as civil rights
In the proposal before the Administrative Court, the citizen also refers to the violation of international law ratified in accordance with the Constitution of the Republic of North Macedonia, as well as to the practice of the European Court for the Protection of Human Rights.
According to the practice of the ECHR, issues of environmental protection are recognized rights that fall within the scope of civil rights.
The state has a positive obligation in accordance with articles 2 and 8 of the European Convention in the context of environmental pollution, which implies taking specific steps to avoid, prevent or reduce pollution that is harmful to human life and health.
The State, the Strasbourg Court points out, has the obligation to create and apply effective measures that would take into account the interests of the local population, which is harmed by the pollution, and which would be sufficient to reduce the pollution to acceptable levels.
To make a court decision with prohibitions and obligations
The need to make such a decision, the citizen emphasizes, is in accordance with the realization of the right to a healthy environment and in accordance with the standards and practice of the European Court of Human Rights. Such a decision, emphasizes the citizen, will not only enable effective judicial protection of the law but will also have a preventive role in terms of environmental protection.
In that context, in the proposal before the Administrative Court, requests to ban the officials the President of the Government of the Republic of North Macedonia, the Minister of environment and spatial planning , the director of the State Environmental Inspectorate as well as the Government of the Republic of North Macedonia and the Ministry of Environment and Spatial Planning, including the State Environmental Inspectorate, to miss the actions they are obliged to take in accordance with The Constitution of the Republic of North Macedonia, the Law on Environment and the Law on Ambient Air Quality.
In that direction, the President of the Government of the Republic of North Macedonia, the Government of the Republic of North Macedonia, the Minister of Environment and Spatial Planning and the Ministry of Environment and Spatial Planning consistently observe the principle of precaution and the principle of prevention defined in the Law on the Environment and the principle of careful and responsible behavior and the principle of precaution defined in the Law on Ambient Air Quality.
“The Minister of Environment and Spatial Planning is obliged to prepare a Proposal – National Plan for the Protection of Ambient Air and submit it to the Government of the Republic of North Macedonia.
The President of the Government of the Republic of North Macedonia and the Government of the Republic of North Macedonia are obliged to adopt a National Plan for the Protection of Ambient Air with a validity period of at least 5 years.
The Minister of the Environment is obliged to promptly and continuously inform the public through the Macedonian Information Center for the Environment, which prepares and publishes annual reports on emissions, annual reports on the quality of ambient air and periodic reports on the implementation of legal obligations.
The President of the Government of the Republic of North Macedonia, the Government of the Republic of North Macedonia, the Minister of Environment and Spatial Planning and the Ministry of Environment and Spatial Planning undertake to establish an effective, efficient and economical system for reducing ambient air pollution”, it is stated in the proposal to the Administrative Court.
Making a court decision is crucial for the protection of the environment
Otherwise, several procedures have been initiated before the domestic judiciary in order to establish responsibility for not taking action to prevent air pollution.
The Macedonian Association of Young Lawyers has initiated two civil proceedings before the Basic Civil Court of Skopje and the Basic Court of Bitola in order to determine responsibility for not taking action to prevent air pollution, which as a consequence causes health problems among citizens.
MZM says that in addition, there is a proceeding before the Basic Court of Struga regarding the illegal landfill. In parallel, two administrative disputes are ongoing, one about the non-adoption of a water management basis and the other about the management plans for the river basins that have not been adopted.
“The absence of court decisions, regardless of which procedure, in which responsibility is determined for actions that endanger the environment, as well as especially failure to perform legal obligations in this area, is crucial to ensuring compliance with the regulations in this area. Without determining responsibility, it is unlikely that the negative practices of environmental degradation and the absence of a quick and effective response by the institutions of the system will be prevented”, emphasized the Macedonian Association of Young Lawyers.
Unfortunately, the Association adds, there are procedural obstacles in the field of civil proceedings (in relation to the subject matter as well as in relation to the wording of the claim) that make it impossible and discourage the conduct of proceedings of this type even though there is a basis for them. There is an additional burden of proof, especially when the finding and opinion of a skilled person is necessary.
“When determining the damage, it is necessary to take into account, in addition to the conventional principles established by the ZOO, especially the principles of precaution, prevention, the polluter pays, for which there is already a legal framework in the Law on the Environment”, the Macedonian Association of Young Lawyers points out emphasizing that the passing of a court decision on environmental protection belongs to the order of judgments that bring social changes, especially in the sphere of environmental justice.
Effective environmental justice is needed
Significant activities and commitments for the establishment of effective environmental justice with a special focus on the implementation of environmental policies, regulations and international environmental standards in the state are undertaken by the Center for Legal Research and Analysis. CPIA points out that the right to a healthy environment is a fundamental right. Citizens deserve effective environmental justice and in that direction effective judicial protection of the right to a healthy environment.
“The role of judges should not consist only of deciding whether the authority has acted in accordance with the law. The court can and must react if in certain cases it determines that the public authority did not act in accordance with the law or if the public authority took actions or failed to take actions that could cause damage to human health or the environment. In doing so, one should especially appreciate the danger that could arise from taking or not taking certain actions and what impact they will have on human health and the environment in the short or long term,” says the environmental justice curriculum for training judges and public prosecutors prepared by the Center.
The journalistic story was prepared by Daniela Markovska Aleksovska within the project “Improving the quality and responsibility in the Macedonian judicial sector” financed by the Embassy of the Kingdom of the Netherlands.