Cartagena Congress (2013) The administrative judge and environmental law»

Transcription

1 Cartagena Congress (2013) The administrative judge and environmental law» I. The sources of the environmental law 1) The national sources of environmental law in the Russian Federation are: The Constitution of the Russian Federation Federal constitutional laws, adopted by the Parliament Federal laws, adopted by the Parliament Agreements and treaties between the Russian Federation and its constituent units Decrees of the President of the Russian Federation Resolutions of the Government of the Russian Federation Official normative acts, adopted by ministries and agencies, including the acts of the Ministry of natural resources and environment of the RF, and its inferior agencies: the Federal service for the oversight of nature management, the Federal agency for the management of natural resources, the Federal water resources agency, the Federal agency for hydrometeorology and environmental monitoring, the Federal forestry agency Constitutions, charters of the constituent units of the RF Laws and other normative legal acts of the constituent units of the RF Normative legal acts of the institutions of local government, local normative acts. 2) The supranational sources are: Universally recognized principles and norms of the international law International treaties of the Russian Federation. The Russian Federation is a party to the following international treaties (bilateral treaties are not shown): 1. International Convention for the Regulation of Whaling (Washington, 1946); 2. Antarctic Treaty (1959) and the Madrid protocol (1991); 3. Ramsar Convention on Wetlands (1971); 4. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 1972); 5. Convention for the Conservation of Antarctic Seals (1972); 6. Convention concerning the Protection of the World Cultural and Natural Heritage (Paris, 1972); 7. Agreement on Conservation of Polar Bears (Oslo, 1973);

2 8. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 1973); 9. Convention on Long-range Transboundary Air Pollution (Geneva, 1979); 10. Convention on the Conservation of European Wildlife and Natural Habitats (Bern, 1979); 11. Convention on the Conservation of Migratory Species of Wild Animals (Bonn, 1979); 12. Convention for the Conservation of Antarctic Marine Living Resources (1980); 13. Vienna Convention for the Protection of the Ozone Layer (1985) and the Montreal Protocol on Substances that Deplete the Ozone Layer (1987); 14. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989); 15. Convention on the Environmental Impact Assessment in a Transboundary Context, (Espo, 1991); 16. UN Framework Convention on Climate Change (1992) and the Kyoto Protocol (1997); 17. UNECE Water Convention (Helsinki, 1992); 18. Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 1992); 19. The Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki, 1992); 20. Convention on Biological Diversity (Rio de Janeiro, 1992); 21. Convention on the Protection of the Black Sea Against Pollution (Bucharest, 1992); 22. United Nations Convention to Combat Desertification (Paris, 1994); 23. UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 1998); 24. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1999); 25. Stockholm Convention on Persistent Organic Pollutants (2001); 26. Commonwealth of Independent States Agreement on Cooperation in the Study, Exploration, and Use of Mineral Resources (Moscow, 1997); 27. CIS Agreement on Cooperation in the Field of Timber Processing Complex and Forestry (1998); 28. CIS Agreement on cooperation in the field of ecology and environmental protection (1999); 29. CIS Agreement about cooperation in the area of environmental monitoring (1999); 30. CIS Agreement on border cooperation in the study, development and protection of the subsoil (Minsk, 2001).

3 3) When adopting a decision, the judge must be governed by the law, and in the first place by the Constitution of the Russian Federation, which includes the following provisions: Land and other natural resources shall be utilized and protected in the Russian Federation as the basis of the life and activity of the peoples living on the territories concerned. Land and other natural resources may be subject to private, State, municipal and other forms of ownership (Art. 9). Citizens and their associations shall have the right to possess land as private property. Possession, utilisation and disposal of land and other natural resources shall be exercised by the owners freely provided that this is not detrimental to the environment and does not violate the rights and lawful interests of other people. The conditions and procedure for the use of land shall be determined by federal law (Art. 36). Everyone shall have the right to health protection and medical care. Medical care in State and municipal health institutions shall be rendered to citizens free of charge at the expense of the appropriate budget, insurance premiums and other proceeds (Art. 41, part 1). Everyone shall have the right to a favourable environment, reliable information on the state of the environment and compensation for damage caused to his (her) health and property by violations of environmental laws (Art. 42). A judge may directly participate in developing the principles of environmental law through the examination of cases, judicial interpretation and scientific activity. Furthermore, it may be said that the members of the Presidium of the Supreme Commercial Court of the Russian Federation take part in developing these principles when adopting resolutions on cases in the sphere of environmental law. 4) As it was stated in Article 3), the Constitution of the Russian Federation directly protects the rights to health protection, to favourable environment, reliable information about its state and a restitution of damage, inflicted on one s health and property by ecological violations. II. The competence of the administrative judge in the environmental field 1) There is no specialized system of administrative courts in the Russian Federation. On top of the judicial branch there are the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation (heading the system of courts of general jurisdiction) and the Supreme Commercial Court of the Russian Federation (heading the system of commercial courts). Administrative liability is stipulated by law for environmental offences in the spheres of property protection, protection of the environment and nature management, agriculture, veterinary science and melioration. Administrative liability measures for committing these offences are provided by the Code of administrative

4 offences and by legislative acts of the constituent units of the Russian Federation regarding administrative offences. Cases in the sphere of administrative jurisdiction may be handled by courts of general jurisdiction, justices of peace (being part of the system of courts of general jurisdiction) and by commercial courts (including specialized panels for disputes, arising from administrative relations). 2) According to Article 29 of the Commercial Procedure Code of the Russian Federation (CPC RF), commercial courts consider in administrative proceedings economic disputes, arising from administrative and other public relations, as well as other cases, related to the exercise of entrepreneurial and other economic activities by organisations and citizens. The CPC RF contains Section III, Proceedings in a Commercial Court of the First Instance on Cases, arising from Administrative and Other Public Relations. According to Federal constitutional law No. 1-FKZ ( ) On Commercial Courts in the Russian Federation, judicial panels are formed in commercial courts of the Russian Federation to resolve disputes, arising from administrative relations. In contrast, there are no panels, the creation of which is stipulated by law, in the courts of general jurisdiction and in the Supreme Court of the Russian Federation. Therefore, currently the commercial courts are carrying out the functions of administrative courts. 3) Cases within the scope of competence of commercial courts are considered in the first instance by commercial courts of republics, territories, regions, federal cities, autonomous regions and autonomous areas (hereinafter referred to as "commercial courts of the constituent units of the Russian Federation"), save for cases referred to the jurisdiction of the Supreme Commercial Court of the Russian Federation, of the Intellectual Property Rights Court and of the Federal Commercial Courts of Circuits (part 1 of Art. 34, CPC RF). The SCC RF acts as a court of first instance in cases of challenge of normative legal acts of the President of the Russian Federation, the Government of the Russian Federation, of federal executive bodies, which concern the applicant s rights and legitimate interests in the sphere of entrepreneurial and other economic activities; challenge of non-normative legal acts of the President of the Russian Federation, the Federation Council and the State Duma of the Federal Assembly of the Russian Federation, of the Government of the Russian Federation and the Governmental Commission for Control over Foreign Investments in the Russian Federation which do not comply with the law and concern the applicant s rights and legitimate interests in the sphere of entrepreneurial and other economic activities (part 2 of Art. 34, CPC RF). III. The proceedings 1) Access to justice

5 Both natural and legal persons must specify in their applications the violation of their rights and legitimate interests. Organisations and citizens may apply to a commercial court for the protection of rights and legitimate interests of other persons. Their applications must specify the violation of public interests or rights and (or) legitimate interests of other persons, being the ground for application to a commercial court (part 2, Art. 53 CPC RF). Moreover, a public prosecutor may bring and actio popularis before the court either on applications of citizens or by own initiative. In a commercial court, the public prosecutor may challenge normative legal acts, non-normative legal acts of public authorities of the Russian Federation, of public authorities of the constituent units of the RF, of local government bodies, infringing the rights and legitimate interests of organizations and citizens in the sphere of entrepreneurial and other economic activities (Art. 52 CPC RF). The concept of presumption of interest for prompting legal action does not exist in the Russian legislation. 2) The procedure 2.1. A citizen may file a complaint regarding the actions (decisions), violating his rights and freedoms, to a higher-ranking state body, local government body, institution, enterprise or association, public association, official, state servant. The higher-ranking body, association or official must examine the complaint within a month. If the citizen s complaint is not satisfied or he has not received an answer within a month from the day of its filing, he may file a lawsuit. The application of a person concerned to a higher-ranking body or official is not a mandatory condition for filing an application to a commercial court Cases of challenge of normative legal acts are considered within three months since the receipt of the application by the court, including the time for the preparation of the case for judicial proceedings and for the adoption of a decision (part 1, Art. 194 CPC RF). The same time term is stipulated for the cases of challenge of non-normative legal acts, decisions and actions (failures to act) of bodies, exercising public powers and officials. However, in such cases the time term may be prolonged for up to six months, on the basis of a reasoned statement of the judge, considering the case, due to the special complexity of the case or a considerable number of participants to the proceedings (part 1, Art. 200 CPC RF) The filing of an application to a commercial court does not halt the challenged normative legal act. However, the court may, upon the applicant s motion, halt the challenged non-normative legal act or decision. Normative legal acts are presumed to be legitimate, therefore the use of provisional measures in cases of challenge of normative legal acts is not possible.

6 2.4. The commercial procedure legislation of the Russian Federation does not contain any special norms regarding the environmental sphere. 3) The powers of judge 3.1. When preparing a case for judicial proceedings and at the initial stage of the proceedings the judge may appoint an expert examination on any issues requiring clarification, including the assessment of damages. The judge may draw a specialist, having special knowledge in a certain filed, to the participation in the proceedings, to give consultations. The judge may appoint an out-of-court session to examine the evidence on the spot. The judge may deem the appearance of representatives of bodies or officials, who adopted the disputed act or decision or performed the disputed actions, in the court session as obligatory. Failure of the said persons, properly notified of the time and place of the court session, to appear constitutes grounds for the imposition of a fine (part 3, Art. 194 CPC RF).. Demands of a commercial court for the submission of evidence, information and other materials, for giving explanations, clarifications and expert opinions, as well as other demands connected with the case under consideration are likewise mandatory and subject to execution for bodies, organisations and persons to which they are addressed (part 1, Art. 16 CPC RF) When adopting a decision, the commercial court is not bound by the arguments, stated in the application of challenge of a normative legal act, decision or action, and checks the disputed provisions in full volume, including the procedure of their adoption. Both the contents of an act or decision and errors made during its adoption may serve as grounds for its cancellation The control performed by commercial courts is a control of rights. The court examines the applications, challenging normative and non-normative legal acts, decisions and actions of different bodies and officials in cases, when these violate the rights and legitimate interests of citizens or legal persons. The sole inappropriateness of an act or decision may serve as ground for its cancellation only on condition that this act or decision violates the applicant s rights As it was stated in Article 3.1., the court checks the challenged act or decision in full volume The judge cannot change the disputed decisions or acts and may only cancel them in the parts that do not comply with the law. The judge cannot use sanctions, although the judge may impose a fine for the non-presentation of the required information or the non-appearance before the court. The judge may award damages. Special methods are used to calculate the quantum of damages in certain cases, created by state bodies (e.g. The method for

7 assessment of damages, caused to the associations of small indigenous communities of the North, Siberia and the Far East of the Russian Federation as a result of economic and other activities of organisations). When recognising an act or decision as invalidated, the court must specify the duty of the corresponding bodies and officials to perform certain actions, adopt decisions or to otherwise eliminate the committed violations of the applicant's rights and lawful interests within an established time term. If actual restoration is not possible, financial compensation is applied. IV. The enforcement of the court decision 1) The commercial procedure legislation of the Russian Federation does not contain any special mechanisms for the enforcement of judicial decisions in the environmental sphere. 2) An appeal may be filed against the decision of the court of first instance. The appellate court checks the facts of the case and the correctness of application of law norms by the court of first instance. A cassational appeal may be filed against the resolution of the appellate court. The cassational court checks the legality of the resolution and decision of the lower courts. The resolution of the cassational court may be appealed against in supervisory proceedings.