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For the Third Meeting of the Parties to the Aarhus Convention The Ecological Society Green ...

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Lawsuit on the inactivity of the government and other state bodies; in other words for non-compliance with an international agreement, the decisions of the Compliance Committee and the Second Meeting of the Parties to the Aarhus Convention On November 2, 2005, Green Salvation and the Ecological Club Biosphere (Ridder) filed a lawsuit in the Saryarkinsk Court in Astana regarding the inactivity of the government and other state bodies with regard to their non-compliance with an international agreement, the decisions of the Compliance Committee and the Second Meeting of the Parties to the Aarhus Convention.

The Court made the decision not to accept the lawsuit. The Court indicated that the Specialized Inter-regional Economic Court must review the lawsuit.

On November 23, a lawsuit was filed with the Specialized Interregional Economic Court of Astana. The Court made the decision not to accept the lawsuit. According to the Court, the Saryarkinsk District Court must review the matter.

On December 9, Green Salvation appealed to the Astana City Court in order to determine which court should review the given lawsuit. The Court determined that the Specialized Inter-regional Economic Court must consider the lawsuit.

On January 14, 2006, the Specialized Inter-regional Economic Court decided for a second time not to accept the lawsuit, justifying its decision by stating that non-compliance by the government of an international agreement is not subject to review and settlement by way of civic legal proceedings. On January 19, an appellate complaint was submitted to the Astana City Court regarding the decision of the Specialized Interregional Economic Court.



On February 28, the Board for Civil Affairs of the City Court reviewed the appellate complaint, acknowledging the arguments of the Court as legal.

On April 11, a complaint for review was filed with the Review Board for Civil Affairs of the Astana City Court.

On May 2, the Board reviewed the complaint for review and rejected the complaint on the same grounds.

On June 5, the Supreme Court reviewed the complaint for review and declared it unfounded. Moreover, the Court indicated that concrete violations or the threat of violations to the rights, freedoms and legal interests of the subjects are not reflected in the lawsuit. This ruling is final; the law does not provide for its appeal.

In each instance, from the District Court to the Specialized Inter-regional Economic Court to the Supreme Court, there was no acknowledgement of human rights violations as a result of the actions of government bodies, even with regard to those cases that were acknowledged by the Committee.

Part II The summary below contains the results of monitoring from October 2006 to May 2008.

LEGISLATION

In the previous summary it was explained that the law On International Agreements of the Republic of Kazakhstan was passed in May 2005. Article 20, Point 2 contradicted Article 4, Point 3 of the Constitution of the Republic of Kazakhstan. On January 25, 2006, Parliaments Mazhilis recognized this fact and came out in favor of its repeal (Legal Reference System Yurist, June 2, 2006). Yet, it was not until February 28, 2007 that this point was eliminated from the law.

One of the main of events in terms of reforming Kazakhstans environmental protection legislation during 2006 was the preparation of the Environmental Code.





On December 21, 2006, senators immediately adopted the draft Environmental Code in two readings. Discussion of a green constitution took less than an hour. On January 9, 2007, the law was signed by the President.

The haste with which the Code was adopted led to numerous deficiencies and gaps in the documents content. For all intents and purposes, national environmental protection legislation was not brought into complete conformity with the provisions of the Aarhus Convention (see the article by S. Kuratov in this collection).

ACTIONS BY STATE BODIES

On September 7-8, 2007, Almaty hosted an international conference of judges from the countries of Central Asia on the problems of implementing environmental legislation.

The document Questions regarding the Realization of the Provisions of the Aarhus Convention in the courts of Almaty City, which the Supreme Court drew to the attention of the conference participants, is available at the following website: http://www.

supcourt.kz/site/SupCourt.nsf/Documents/076C01990757D4B7462 571E80030E7DA?OpenDocument.

In February 2008, the Government submitted to the Aarhus Conventions Compliance Committee the Report on Measures Taken to Implement Decision II/5a and the National Report on Executing the Aarhus Convention, which contains information for the period 2005-2007.

In the previous summary it was explained that on February 3, 2006, the Compliance Committee had been sent a draft strategy and implementation plan for Decision II/5a, which was adopted at the Second Meeting of the Parties to the Convention. Throughout 2006Green Salvation requested information from the Ministry of Environmental Protection regarding the fate of these documents (see below for additional details). Unfortunately, the draft strategy and plan were not approved by the Government. In the view of the Ministry of Environmental Protection, the need for the documents passed with the adoption of the Environmental Code. However, this did not keep the Government from stating in the Report on Measures Taken that the plan for implementing the strategy on the aforementioned measures has been fulfilled (p.2).

ACTIONS BY THE ECOLOGICAL SOCIETY GREEN

SALVATION

Information Collection Green Salvation continued to send inquiries to government establishments, attempting to clarify how the Convention is being observed and what measures are being taken to implement the decision of the Second Meeting of the Parties.

On October 4, 2006, Green Salvation sent a standard letter to the Ministry of Environmental Protection requesting confirmation as to whether or not the draft strategy and the implementation plan for Decision II/5a were approved.

On November 9, Green Salvation received a response stating that the strategy and implementation plan were awaiting agreement by the relevant government bodies.

On February 28, 2007, Green Salvation again appealed to the Ministry of Environmental Protection with a related inquiry, and on April 4 received the answer that the Ministry of Economics and Budget Planning had not allocated funds for the execution of measures to implement Decision II/5a (No. 2-2-2-12/2247).

Concerned by this answer, Green Salvation appealed to authorities at various levelsdomestically and internationally.

Green Salvation sent the Ministry of Environmental Protections April 4th response to the Head of Delegation of the European Commission in Kazakhstan, Kyrghiz Republic and Tajikistan and to the Aarhus Conventions Compliance Committee.

In order to disclose what measures the Government planned to take in connection with the lack of compliance by state bodies with the decision of the Second Meeting, Green Salvation sent letters to the Prime Minister, the Security Council, and the Ministry of Environmental Protection.

Based on Green Salvations correspondence, EarthWire Kazakhstan prepared the article Does Kazakhstan Not have Money to Implement the Aarhus Convention?, published on April 20 via listserv (http://www.earthwire.org/kz/).

On assignment by the Prime Minister, the Ministry of Economics and Budget Planning reported to Green Salvation that the Ministry of Environmental Protection provided unreliable information, as it had not requested money for measures to implement Decision II/5a (No. 16-2-2/4619).

On September 11, 2007, Green Salvation sent a letter to the Ministry of Environmental Protection requesting the analytical information assessing the status and preparation of the national reports regarding the implementation of international conventions ratified by the Republic of Kazakhstan, which the Ministry prepared for the Government. The information was provided (No. 04-1-2On September 21, Green Salvation sent a standard letter to the Ministry of Environmental Protection regarding the fate of the draft strategy. On October 5, Green Salvation received the response that in connection with the adoption of the Environmental Code in 2007, which takes into account the recommendations of Decision II/5a, the Ministry considers the question of approving the draft strategy to have lost relevance (No. 02-2-2-12/10966).

On October 17, Green Salvation appealed to the ministries and departments that should have participated in the strategys implementation.

The Supreme Court, Ministry of Environmental Protection and the Agency of the Republic of Kazakhstan for the Administration of Land Resources provided brief information on measures undertaken (No. 11-6/3435 from 11/1/2007, 04-1-2-8/12032 from 11/8/2007;

13-1-11/264 from 11/13/2007).

The General Public Prosecutors office also reported on measures concerning the Conventions implementation. And pointed out that the responsibility for implementing Decision II/5a lies with the Ministry for Environmental Protection (No. 36-24179-07.1 from 12/24/2007).

The Ministry of Energy and Mineral Resources responded that it was premature to provide information as the draft plan was not approved (No. 06-02-9989 from 11/5/2007).

The Forestry and Game Committee of the Ministry of Agriculture reported that it could not provide information as the plan for implementing Decision II/5a is a draft and not confirmed by a corresponding normative act (No. 25-11-23/4196 from 11/13/2007).

The Ministry of Industry and Trade responded that it is not conducting any efforts to implement the strategy or plan as they were not approved (No. 16/4-15082 from 11/13/2007).

The Ministry of Economics and Budget Planning reported that the draft strategy and plan were not agreed to by the Ministry (No. 16-2from 11/22/2007).

As such, the majority of state bodies, which should have participated in implementing the strategy, did not undertake any actions just because the draft document was not approved by the Government.

On December 25, 2006, Green Salvation sent an inquiry to the General Prosecutor in an attempt to find out what measures the General Public Prosecutors office intended to undertake in regards to the inactivity of state bodies, which did not create a legal basis for public participation in the decision-making process regarding environmental matters.

On January 26, 2007, the General Public Prosecutors office (No.

7-28624-06) reported that the deadline for reviewing the inquiry had been extended.

On March 26, Green Salvation again appealed to the General Public Prosecutors office, which reported on April 4, that the letter had been reviewed (No. 28-7702-07). However, the fundamental questions remained unanswered.

Sharing Green Salvations experience On November 21, 2006, Green Salvation held a press conference at the Kazakhstani Press Club in regards to Kazakhstans compliance with the Aarhus Convention and Decision II/5a.

On May 2-4, 2007, the 7th Meeting of the Working Group of the Parties to the Aarhus Convention met in Geneva. A representative of Green Salvation made statements during two of the section meetings regarding the Republic of Kazakhstans lack of compliance with the Convention.

On May 8, Green Salvation sent a new communication to the Compliance Committee. The grounds for the appeal were the inactivity of state bodies of the Republic of Kazakhstan, as a result of which the legal basis was not created for public participation in the decision-making process regarding environmental matters. On June 22, Green Salvation received the response that Communication ACCC/C/2007/20 falls under the Committees mandate, but its review was postponed until information is provided by the official bodies.

On May 30, Green Salvation submitted to the Compliance Committee the document Monitoring the Implementation of the Aarhus Convention in the Republic of Kazakhstan.

On July 17-18, the organization Access Info Europe conducted a seminar in Madrid titled Access to Information as a Tool for Anti-Corruption & Revenue Monitoring. A Green Salvation representative presented information regarding the organizations work to utilize pre-judicial and judicial methods to defend the right of citizens to access to information, as well as information on the appeals to the Aarhus Conventions Compliance Committee and to international financial organizations.

On September 10-12, the Second Meeting of the Aarhus Conventions Working Group on Access to Justice was held in Geneva. A Green Salvation representative shared the organizations experience with justice bodies and drew attention to the need to strengthen control over the implementation of decisions by the Conventions bodies.

On October 2, Green Salvation had a meeting with Mr. C.Ozdemir, a European Parliamentary Deputy and speaker on the Central Asian region. Green Salvation representatives informed the meeting participants about Kazakhstans lack of compliance with a number of the Aarhus Conventions statutes. On October 8, this information was sent in written form to Mr. C.Ozdemir.

The 8th Meeting of the Working Group of the Parties to the Aarhus Convention was held in Geneva from October 31 to November 2. A representative of Green Salvation noted in his prepared remarks that Kazakhstan is not in compliance with the decisions of the Committee and the Second Meeting of the Parties. As before, the public does not have access to effective participation in decision-making processes. Illegal construction remains one of the main causes of the deteriorating environmental situation in Kazakhstan (see the article by S.Kuratov in this collection).

Green Salvation also sent the Convention Secretariat a letter regarding the necessity of confirming the reliability of information provided by Kazakhstans state bodies.

On November 15-16 in Bishkek (Republic of Kyrgyzstan), there was a presentation of the TACIS project Strengthening Public Participation and Civil Society Support to the Implementation of the Aarhus Convention. A Green Salvation representative, participating in the discussion of the document, suggested the incorporation of a number of substantive corrections to the draft.

On December 7 in the city of Petropavlovsk (Kazakhstan), the Soros-Kazakhstan Fund conducted an inter-regional seminar on the topic of Access to Information and Protection of the Right to Obtain Information. Green Salvation representatives participated in the seminar as head lecturers (www.greensalvation.org).

On December 20-21, there was an international conference in the city of Lvov (Ukraine) on Defending the Right to Information, organized by the Charitable Fund Environment. People. Law. (www.epl.org.ua/). A Green Salvation representative gave a presentation titled The Right to Access to Environmental Information and Problems Implementing this Right: The Example of Activities by the Ecological Society Green Salvation (www.

greensalvation.org).

On February 28-29, 2008, there was a meeting in Almaty (Kazakhstan) of nongovernmental organizations of Kazakhstan, titled Strengthening Public Participation in the Aarhus Process. The meeting was organized by the European ECO Forum, and Green Salvation representatives actively participated in the organization and conduct of the meeting.

On March 4, Green Salvation was invited to collaborate by the Head of the Working Group of the regional TACIS project Strengthening Public Participation and Civil Society Support to Implementation of Aarhus Convention. Green Salvation agreed to participate in a number of regional and national seminars on access to justice, which will be held in 2008.

On March 12, the Aarhus Convention Secretariat proposed that Green Salvation prepare comments to the Draft Report on Compliance by Kazakhstan. On March 18, Green Salvation submitted comments to the Secretariat. Green Salvation considers the draft report to paint an inaccurate picture of the Republic of Kazakhstans compliance with the Convention.

On May 21, Green Salvation received the final version of the document from the Aarhus Convention Secretariat. The Committee included in the document a number of the comments that Green Salvation provided to the draft report.

Court experience Green Salvation continues to defend in the courts the rights of citizens to access to information, participation in decision-making processes and access to justice in environmental matters. On average, Green Salvation files eight lawsuits per year.

Lawyer Svetlana Filippovna Katorcha defends the rights and legal interests of organizations and citizens (by proxy) in the courts; Pavel Mikhailovich Kochetkov, Director of the West Kazakhstan Branch of the Bureau for Human Rights and Rule of Law, is responsible for the defense of the lawsuit regarding the lack of environmental information provided by the Statistics Department of West Kazakhstan Oblast.

Following is a summary of the most important legal cases for the period January 2007 to April 2008.

Lawsuit on the Refusal of the Statistics Department of West Kazakhstan Oblast to Provide Environmental Information. The lawsuit was filed in the interests of citizens on February 14, 2007 in the Court of the city of Uralsk, and then in the Specialized Interregional Economic Court of West Kazakhstan Oblast (SIEC WKO).

The lawsuit demands:

1. To recognize the actions of the defendantthe Head of the Statistics Department of West Kazakhstan Oblast, who refused to provide Green Salvation with requested information regarding emissions of polluted matter into the atmosphere by the enterprise Karachaganak Petroleum Operating, B.V.in violation of the rights and legal interests of a natural entity.

2. To require the defendant to provide Green Salvation with the requested information on emissions of polluted matter into the atmosphere by the enterprise Karachaganak Petroleum Operating, B.V.

3. To submit a court ruling to the Statistics Agency of the Republic of Kazakhstan on the lack of compliance with the laws of the Republic of Kazakhstan on the part of the Head of the Statistics Department of West Kazakhstan Oblast.

On May 7, the SIEC WKO refused to satisfy the lawsuit demands.

On June 12, the Board on Civic Affairs of the West Kazakhstan Oblast Court retained the decision of the SIEC WKO without changes, and the appellate complaint without satisfaction.

The Review Board of the West Kazakhstan Oblast Court refused to file a complaint for review.

In December, a complaint for review was filed with the Supreme Courts Review Board on Civic Affairs.

On March 26, 2008, the Supreme Courts Review Board on Civic Affairs introduced a decision on the satisfaction of the complaint for

review:

The decision of the Specialized Inter-regional Economic Court of West Kazakhstan Oblast from May 7, 2007 and the ruling by the Board on Civic Affairs of the West Kazakhstan Oblast Court from June 12, 2007 have been repealed.

The Statistics Department of West Kazakhstan Oblast is required to provide the Green Salvation with the requested environmental information. The decision is substantiated by the provisions of the Aarhus Convention.

The information was received at the end of April 2008.

Lawsuit on the Refusal of the Statistics Department of Karaganda Oblast to Provide Environmental Information. The lawsuit was filed on April 3, 2007 in the Specialized Inter-regional Economic Court of the city of Karaganda; and then filed on June 4 in the Court of the Kazybek bi District of Karaganda city.

The lawsuit demands:

1. To recognize the actions of the defendantthe Head of the Statistics Department of Karaganda Oblast, who refused to provide Green Salvation with requested information regarding emissions of polluted matter into the atmosphere by Mittal Steel Temirtauin violation of the rights and interests of a legal entity.

2. To require the defendant to provide Green Salvation with the requested information.

3. To submit a court ruling to the Statistics Agency of the Republic of Kazakhstan on the lack of compliance with the laws of the Republic of Kazakhstan on the part of the Head of the Statistics Department of Karaganda Oblast.

4. To extract payment from the defendant for legal expenses.

On July 23, the Court of the Kazybek bi District of Karaganda city refused to satisfy the lawsuit demands.

The decision was not appealed via an appeals procedure.

On October 15, the Review Board of the Karaganda Oblast Court refused to file a complaint for review.

On December 6, the Supreme Courts Review Board on Civic Affairs refused to file a complaint for review.

Lawsuit on the Refusal of the Akimat of Almaty City to Provide Information regarding Construction in the Medeu Hollow. The lawsuit was filed on May 16, 2007 in the Specialized Inter-regional Economic Court of the city of Almaty.

The lawsuit demands:

1. To recognize the actions of the defendantthe Akimat of the city of Almaty, who refused to provide Green Salvation with requested informationin violation of the rights and interests of a legal entity, i.e. to declare the actions as an omission.

2. To require the Akimat of the city of Almaty to provide the Ecological Society Green Salvation with information regarding the construction of a new aerial cable tramline to carry vacationers from Medeu to the Shymbulak (Shymbulak is another name for Chimbulak) mountain ski resort.

3. To submit a court ruling to the President of the Republic of Kazakhstan on the lack of compliance with the laws of the Republic of Kazakhstan on the part of the Akimat of the city of Almaty.

4. To extract payment from the Akimat of Almaty city for legal expenses.

On June 6, the defendant provided the information during a court meeting. The judge issued a ruling not to review the lawsuit statement.

Lawsuit on the Refusal of Tsentrbeton Ltd. to Provide Environmental Information. The lawsuit was filed together with local residents and in their interests on August 2, 2007 in the Specialized Inter-regional Economic Court of the city of Almaty; and then filed on September 24 in Zhetysuisk District Court No. 1 of the city of Almaty.

The lawsuit demands:

1. To recognize the actions of the defendantthe Director of Tsentrbeton Ltd., who refused to provide citizen L.A.Gatina with requested informationin violation of the rights and interests of a citizen, i.e. to declare the actions as an omission.

2. To require the Director of Tsentrbeton Ltd., to provide report data on industrial environmental control for the first quarter of the year, and data on emissions monitoring and monitoring of the impact of Tsentrbeton Ltd. on the health of the population.

On December 10, Zhetysuisk District Court No. 1 of Almaty city issued a verdict in absentia regarding the satisfaction of the lawsuit.

The verdict entered into court in absentia.

Incomplete information was provided on March 10, 2008.

Lawsuit on the Refusal of the Subsidiary State Enterprise AlmatygorNPTSzem to Provide Environmental Information. The lawsuit was filed in the interests of local residents on September 24, 2007 in the Specialized Inter-regional Economic Court of the city of Almaty.

The lawsuit demands:

1. To recognize the actions of the defendantthe Director of AlmatygorNPTSzem, who refused to provide Green Salvation with a copy of the state act on the right to private ownership of the land plot, which was allocated as water protected zone, as well as information on its registration in the Almatys Center for Real Estateas an omission.

2. To require the Director of AlmatygorNPTSzem to provide Green Salvation with a copy of the state act on the land plot, and information on its registration with the Almatys Center for Real Estate.

3. To submit a court ruling to the Akim of Almaty city on the lack of compliance with the laws of the Republic of Kazakhstan on the part of the Director of AlmatygorNPTSzem. On November 23, the Court refused to satisfy the lawsuit demands.

The verdict was received on January 31, 2008.

On February 5, 2008, a complaint for review was submitted to the Review Board of the Almaty City Court.

On April 1, the Review Board issued a decision on the partial satisfaction of the complaint for review. The court ruling was denied.

All of the requested information was received.

Lawsuit on Refusal of the Akimat of the City of Almaty to Provide Information regarding Plans for Construction in the Kokzhailau Hollow. The lawsuit was filed on October 22, 2007 in the Specialized Inter-regional Economic Court of the city of Almaty.

The lawsuit demands:

1. To recognize the actions of the defendantthe Akimat of the city of Almaty, who failed to provide information on the planned construction of the Kokzhailau mountain ski resort, the duration of the projects development and the execution of the projectas an omission.

2. To require the Akimat of the city of Almaty to provide the Ecological Society Green Salvation with the aforementioned information.

3. To extract payment from the Akimat of Almaty city for legal expenses.

On November 14, the SIEC issued a verdict in absentia regarding the satisfaction of the lawsuit.

The courts verdict will be partially executed, in connection with which the Ecological Society Green Salvation sent a new inquiry to the Akimat.

Lawsuit on Omissions by State Bodies that have Led to the Creation of an Unsanctioned Dumping Ground.*** The lawsuit was filed on May 16, 2007 in the Specialized Inter-regional Economic Court of the city of Almaty.

The defendants: the Akimat of the city of Almaty, and the Almaty City Territorial Department on Environmental Protection.

The lawsuit demands:

1. To recognize the failure on the part of the defendants to exercise control over the actions of Chimbulak Ltd. to liquidate the unsanctioned dumping ground, as a result of which the dumping ground is damaging the environmental system of a specially protected natural territory.

2. To require Chimbulak Ltd. to pay for the damage caused to the surrounding natural environment by recultivating the territory on which the unsanctioned dumping ground is situated.

3. To require the defendants to exercise control for the liquidation of the unsanctioned dumping ground in the area of the Shymbulak mountain ski resort.

4. To submit a court ruling to the President of the Republic of Kazakhstan on the inactivity of the Akimat of the city of Almaty; and to the Ministry of Environmental Protection on the inactivity of the Almaty City Territorial Department on Environmental Protection.

5. To extract payment from the Akimat of Almaty city for legal expenses.

More than 10 sessions were held prior to the issuing of the courts decision. There was a land assessment to determine land ownership and the territorys administrative affiliation. For the systematic failure to appear in court by the representative of the Akimat of the city of Almaty, the judge issued a court ruling to the Akimat.

Green Salvation conducted a weekly photo survey of the land plot, taking more than a hundred photographs.

On September 10, the court issued a verdict on the satisfaction of the lawsuit.

On May 1, 2008, the Courts decision was partially executed, although it is not recognized by the defendants.

Lawsuit on the Repeal of the Decision by the Akimat of the City of Almaty on the Allocation of the Land Plot in the Water Protected Zone of the Yesentai River, which is under Private Construction.

The lawsuit was filed in the interests of local residents on January 8, 2008 in the Specialized Inter-regional Economic Court of the city of Almaty, and then on January 17 in Court No. 1 of the Bostandyksk District of the city of Almaty, and then on February 1 in the Medeu District Court of Almaty city.

The lawsuit demands:

1. To recognize as illegal the decision of the Akimat of the city of Almaty to grant the right of private ownership of the land plot and a buy/sell agreement for this land plot, and to repeal them.

2. To recognize as illegal the State Act on the Right to Private Property on the land provided to AlmatygorNPTSzem, and repeal it.

3. To require the owners to remove all of the waste from the aforementioned land plot, located in the water conservation region, and to recultivate the plot.

4. To issue court rulings on the violations of the laws of the Republic of Kazakhstan by governmental bodies.

Eight sessions were held prior to the court issuing the decision.

An assessment was conducted to determine the border of the plot and environmental conservation region. On more than one occasion, Green Salvation conducted photo and video surveys of the plot, having taken nearly a hundred photographs.

On April 22, the court issued a decision on the refusal to satisfy the lawsuit demands.

*** Based on this summary, we would like to stress again that violations of the rights of citizens to access to information, public participation in decision-making processes, and access to justice regarding environmental matters are observed at all levels of governmental authority.

One of the main reasons for non-compliance with the Convention is that it fosters the real democratization of society, but this is contradictory to the interests of the ruling elite.

Notes * This summary was prepared based on the lawsuits filed and documents obtained by the Ecological Society Green Salvation from April 2005 to May 2008. Please see page 93-95 for the list of references.

** The Ecological Society Green Salvation sent suggestions and additions to the Plan to the Ministry of Environmental Protection.

The text of this letter (No. 095), dated 7 October 2005, is archived on our site (www.greensalvation.org).

*** Described below are two lawsuits, which, in the authors opinion, clearly illustrate the unsatisfactory work of justice bodies.

The reasons for the appeals to the court were elementary violations, which may have been eliminated through administrative means without intervention by the court. However, the trials drag on for months.

Material prepared by Nataliya Medvedeva.

Translated by Michelle Kinman.

Appendix 3.

Public Access to Environmental Information in Kazakhstan1 The right of citizens access to environmental information is ensured by national legislation and international agreements: the Constitution, the Environmental Code, the Aarhus Convention, and a number of other normative legal acts.

The Environmental Code states that environmental information is openly available, and that access to specific reports and data, constituting openly available environmental information, is carried out through its provision in response to inquiries from physical and legal persons, distribution via the mass media and specialized publications, and placement on the Internet, as well as the use of other freely accessible means of communication (Article 163).

According to Article 14, Point 1, Sub-point 7 of the code, nongovernmental organizations have the right to receive timely, complete, and reliable environmental information from state bodies and organizations. The right of access to information is also guaranteed by the 2007 law On Procedures for Considering Appeals by Individuals and Legal Entities. Among other things, it sets the time required for considering such appeals: Appeals by physical and/or legal persons, the consideration of which does not require the receipt of information from other entities or officials, or verification including travel from the site of inquiry, will be considered in the course of fifteen calendar days (Article 8, point 1).

Written inquiries are the lengthiest, but thus far the most effective technique for obtaining environmental information. Other methods E-mail, the Internetstill remain ineffective as a means for its distribution. In addition, in the event that arguments or conflicts arise, written responses are documents that can be presented even in court. However, the fact that written information is frequently incomplete or of poor quality must also be taken into account.

The main topics of inquiries by the Ecological Society Green

Salvation have included the following:

- the condition of specially protected natural territories;

The activities of the Ecological Society Green Salvation are used here as an example of the broader issue of public access to environmental information

- the implementation of various projects, including those having a direct impact on specially protected natural territories;

- the influence of industrial enterprises on the environment, including assessment of the impact of economic activity;

- the state of the environment in populated areas (air, water, and soil quality);

- the state of peoples health and environmental safety;

- questions regarding clarification of environmental legislation;

- violations of environmental law;

- the actions of state bodies to resolve specific environmental problems; and others.

According to the Aarhus Convention, all of this information should be easily available!

In the course of 2005, Green Salvation sent 103 inquiries to state agencies, the majority of which received replies. In some cases, officials refused to provide information, or failed to reply altogether.

In connection with this, Green Salvation was twice forced to turn to the courts in order to obtain the necessary information.

A lawsuit against the Forestry and Game Committee of the Ministry of Agriculture was tied to the latters failure to provide information regarding the forestry funds statistical report (Form No. 1) for the Medeu Nature Park. The suit was accepted for consideration, but the information was received before the start of court proceedings.

The second lawsuit, against the Public prosecutors office of the Almalinsky District of the city of Almaty, stemmed from the fact that the latter ignored a request to clarify certain articles of the law On Environmental Assessment. The necessary information was obtained after court proceedings were already underway.

In 2006, the organization sent 66 inquiries for environmental information to state agencies and international financial institutions.

Compared to 2005, the situation remained virtually unchanged.

Correspondence between the parties was subject to frequent delays.

In four cases, it was necessary to turn to the courts.

The Republican Sanitary-Epidemiological Station, citing confidentiality, refused to provide a copy of the conclusions of sanitary-epidemiological expertise for the project preliminary Environmental Impact Assessment for the Construction of the Moinakskaya Hydroelectric Station on the Charyn River. The construction of the reservoir and power station may have a negative impact on the ecosystems of Charyn National Park and lead to the degradation of the Charyn ash grove, a unique natural monument of national status2.

The Committee for Water Resources ignored a request for certain materials concerning the Moinakskaya power station project, which had been sent for state environmental expertise3.

The Akimat (mayors office) of the city of Almaty failed to respond to an inquiry regarding the means taken in response to numerous complaints by the residents of the Gornyi Gigant (Mountain Giant) residential district, who demanded the removal of the 110-kV power line running through their community.

The mayors office also refused to give Green Salvation a copy of the mayors resolution providing a plot of land for the construction of a private residence within the protected zone of the Yesentai River. This information was needed to consider the complaints of the citizens of Gornyi Gigant, and to prevent illegal construction within the rivers protected zone.

It should be noted that all of these suits were satisfied: the actions of the state bodies were declared unlawful, and the requested information was provided.

In 2007, a total of 125 inquires were sent. In six cases, repeated appeals were necessary. Not all state agencies approached their duties in a responsible fashion. Several inquiries failed to result in the needed information; therefore, six lawsuits were filed.

The statistical department of West Kazakhstan Oblast, citing confidentiality, refused to provide information regarding the discharge of atmospheric pollutants by the facilities of Karachaganak Petroleum Operating, B.V. The Specialized Inter-regional Economic Court (SIEC) and the higher courts of West Kazakhstan Oblast refused to satisfy the suit. The Supreme Court of Kazakhstan granted an appeal, and the information was obtained4.

The statistical department of Karaganda Oblast, citing confidentiality, refused to provide information regarding the discharge of pollutants by the facilities of Mittal Steel Temirtau. All legal instances refused to satisfy the suit.

The Akimat of the city of Almaty failed to provide information http://www.greensalvation.org/old/Russian/Facts/H_rights/isk_ rses/isk_rses_13.04.06.htm http://www.greensalvation.org/old/Russian/Facts/H_rights/isk_ vod%20komitet/zaiavlenie.htm http://www.greensalvation.org/index.php?page=VSpostanovlenie regarding the construction of a new cable tramway for vacationers from Medeu to the Chimbulak ski resort. The defendant handed over the information in the course of the trial.

The company Tsentrbeton Ltd. (Central Concrete) failed to provide data concerning environmental monitoring and control, including information on the enterprises impact on the health of the local population. The court ruled that the suit be satisfied, and the information was provided.

A subsidiary of the state-owned company AlmatygorNPTszem failed to provide a copy of the state act on the right to private ownership of the land granted within the rivers protected zone, as well as information regarding the lands registration with Almatys Center for Real Estate. The SIEC refused to satisfy the demands of the lawsuit. The Review Board of the Almaty City Court partially satisfied Green Salvations complaint, and the information was obtained.

The Akimat of the city of Almaty failed to provide information on the planned construction of the Kokzhailau vacation and ski resort on the territory of Ili-Alatau National Park5. The court ruled that the city (in absentia) was required to satisfy the suit, but the requested information was not provided in full.

Judging from the Green Salvations experience, the following conclusions may be reached.

1. State officials at times interpret the provisions of national legislation, such as the concept of confidential information, in an arbitrary fashion.

Green Salvation contacted the Ministry of Environmental Protection, the Akimat (governors office) of West Kazakhstan Oblast, and the international consortium Karachaganak Petroleum Operating, B.V. to request a copy of the memorandum of mutual understanding between the three parties. The ministry and consortium both refused to provide this information, citing its confidentiality, while the Akimat provided a copy of the document6.

An analogous situation was created when Green Salvation requested a copy of the memorandum of mutual understanding http://www.greensalvation.org/index.php?page=kokzhaylau http://www.greensalvation.org/old/Russian/Facts/Documents/ memor_karachag_rus.htm;

http://www.greensalvation.org/old/English/Facts/Documents/ memor_karachag29.06.05.htm between the Ministry of Environmental Protection, the Akimat of Karaganda Oblast, and the company Mittal Steel Temirtau. The Ministry refused and the company ignored the inquiry, while the Akimat provided the text of the memorandum.

In our view, such information should be easily accessible. For example, it could be posted on the website of the Ministry of Environmental Protection (http://nature.kz/).

2. The websites of state bodies do not always provide sufficient information for decision-making purposes; therefore, numerous inquiries are needed.

3. Requests for information from local government bodies, especially in major cities, are most often ignored.

4. Replies frequently fail to contain complete information, making additional requests necessary.

5. Appealing to the courts often enables information to be obtained, but does not guarantee its completeness or quality. In addition, legal proceedings can prolong the information-gathering process for months, interfering with decision-making and creating difficulties for the organization involved.

Material prepared by Svetlana Spatar.

Translated by Glenn Kempf.

Appendix 4.

Pardon Us, World Heritage!

Or Ecocide for Personal Gain Ecocide is the intentional, intensive destruction and pollution of the natural environment, creating the threat of environmental catastrophe. This is precise characterization of the situation in the Maly Almatinsky Canyon (alongside the City of Almaty), which has developed as a result of the lack of consistent policies to protect the Republic of Kazakhstans most valuable natural territories.

In order to preserve and restore the unique natural complexes of the Zailiisky Alatau, which hold great environmental, historical, scientific, esthetic and recreational value, the government of Kazakhstan adopted a decision to create the Ile-Alatau National Park (February 22, 1996, No. 228). Admittedly, no buffer zone was established around its border, and no procedures were established for removing outside land users from the park. But Moscow was not built in a day. The key was that the multiple-year efforts of specialists, scientists and the public to create the park were successful and it seemed that there was a real possibility to steadfastly protect natures beauty and wealth but, as is well known, the road to hell is paved with good intentions. In just two years time, by the Presidential Decree On Changes to the Border of the City of Almaty (April 29, 1998, No. 3929), 57.9 hectares of the Ile-Alatau National Park in the Maly Almatinsky Canyon were transferred to the citys administrative jurisdiction.

These lands did not lose their status as an environmentally protected territory of national significance. Thus, on the surface, it appeared that this decree was adopted in order to establish the optimal administrative management scenario. Only later did the true meaning of these metamorphoses become clear.

On October 1, 1999, the Akim of Almaty City made the decision to create the Medeu Natural Park in order to preserve the particular environmental, recreational and scientific value of the Medeu Hollow and to decrease pollution and the human footprint on its territory (October 1, 1999, No.

906). A clever basis for this action was presented: The creation of Medeu Park is a measure aimed at protecting the Ile-Alatau National Park from its excessive recreational burden, by redirecting the recreational barrage away from the true natural territories (Natural-Scientific Grounds, p.

144). Had they remembered about the national parks buffer zone?

No, it had never been established. According to the plans, Medeu Park should function as the buffer zone for the Ile-Alatau National Park in the Maly Almatinsky Canyon, created on the citys territory and a narrow strip wedged in the Ile-Alatau National Park.

On January 31, 2000, the plan to create Medeu Park was discussed at public hearing. Specialists from Kazgiproleskhoz, Lesproekta*, leaders from the Ile-Alatau State National Natural Park and NGO representatives (including the Ecological Society Green Salvation) expressed negative attitudes towards the idea of its creation. They stated that the organization of such a structure was inadvisable, as it would lead to an increasing human footprint on the territory of the national park, as well as to a reduction in the effectiveness of environmental protection measures in the Medeu Hollow as a whole.

Public concerns grew after the results became known of work by a joint panel from the Ministry of Natural Resources and Environmental Protection, and the General Public Prosecutors office regarding compliance with the legality of Specially Protected Natural Territories (Reference and Resolution). The panel acknowledged numerous cases of legislative violations, including those in the IleAlatau National Park.

Concerned with the deteriorating situation in the Medeu Hollow, the public tried to draw the attention of the countrys leadership to the problem. In September 2000, participants in the Second Ecological Forum of Nongovernmental Organizations of Kazakhstan appealed to the President, members of Parliament, and the Minister of Natural Resources and Environmental Protection to halt the destruction of the territorial and environmental value of the Ile-Alatau National Park (Appeal). The public received even more weighty arguments for protecting the park when, in December 2000, the park was included in a tentative list of sites nominated by the Republic of Kazakhstan for the List of the Convention Concerning the Protection of the World Cultural and Natural Heritage (Meeting Decisions).

Responding to the public appeal, in February 2001, the Ministry of Natural Resources and Environmental Protection also expressed opposition to the creation of Medeu Park (Response from the Ministry of Natural Resources and Environmental Protection No. 03In fact, it is envisaged that Medeu Park will include the buffer zone of the Ile-Alatau State National Nature Park and the protected forests around the river beds of the Malay Almatinka and Butakovka, in which, under powerful human influences, there are now growing sparse, diseased plantings of Sivers apple trees, apricots, Karkas Kavkazsky trees (Celtis caucasica) and 14 other ancient types of plants included in Kazakhstans Red Book The creation of a city park on the border of a national park and its buffer zone will have extremely negative consequences Considering the aforementioned, the Republic of Kazakhstans Ministry of Natural Resources and Environmental Protection considers the creation of the citys Medeu Nature Park to be unnecessary. The Ministry did not approve the conclusion of the projects environmental assessment, conducted by the Almaty City Territorial Department on Environmental Protection (Response from the Ministry of Natural Resources and Environmental Protection No. 03-05-10/507).

Nevertheless, the park was created. And it included a portion of the Ile-Alatau National Parka Specially Protected Natural Territory of a higher level. Such a decision could only have been made by native bureaucrats.

Almost simultaneous to the creation of Medeu Park, chaotic construction of private cottages began on the parks territory. Wild, fertile forests began to be cut down, water storage areas began to be built, the rivers and their banks became covered in waste, mighty fences were erected, and the inscription Private Property began to appearalong with armed guards!

Visitors to Medeu Park are greeted by a sign at the entrance with dual meaning: Nature is in Our Hands! Certainly, the basic idea behind the parks creation lies in this sloganto privatize, or more simply, to steal the territory of the hollow, which is now at the disposal of Almatys Akimat.

Despite the negative conclusion from the Ministry of Natural Resources and Environmental Protection, in 2001, under the suitable pretext of executing the Complex Program for the Development and Arrangement of Specially Protected Natural Territories of the Republic of Kazakhstan until 2030 and for the purposes of preserving and renewing the unique natural complexes of the Zailiisky Alatau, the City Akimat renamed the state establishment Medeu to the State Natural Park Medeu and gave it the state of an environmentally protected establishment! (December 10, 2001, No.

3/332). This is not the normal course of things in our homeland!

Subsequent events may be briefly described as an interdepartmental battle for the long tenge, or rather the long dollar, the victor of which emergedthe Akimat.

On February 6, 2002, the Ministry of Natural Resources and Environmental Protection continued to insist that the decision of the Almaty City Akim to create the State Natural Park Medeu was made in violation of norms established by the legislation of the Republic of Kazakhstan, and is subject to repeal via established procedures (Response from the Ministry, No. 02-05-10/375).

Nevertheless, on July 15, 2002, a government decision was issued On Converting Individual Portions of Specially Protected Natural Territories to Different Land Categories (July 15, 2002, No. 780), including land from the Ile-Alatau National Park.

In January 2003, the Almaty Akimat was forced to acknowledge that the situation in the natural territory was continuing to deteriorate: the stream of automobile traffic was increasing, private construction was continuing, and the problems of water storage and drainage remained unresolved.

Alas the specialists and the public turned out to be right.

Converting a portion of the land from a national park to an administrative jurisdiction of the city and creating Medeu Park not only did not foster the improvement of the environmental situation in the natural territory, but rather made it worse. And what sort of way out did the Akimat suggest?

The Akimat adopted the decision entitled On Measures to Improve the Environmental Situation in the Medeu State Nature Park and the Chimbulak (Chimbulak is another name for Shymbulak) Mountain Skiing Complex (January 24, 2003, No. 1/41).

Among other things, this decision speaks about the construction of aerial tramways and multi-tiered parking garages for thousands of vehicles as one of the means to improve the environmental situation!?

From all appearances, the Akimats decision was strengthened by weighty arguments that convinced even the Ministry of Environmental Protection (formerly the Ministry of Natural Resources and Environmental Protection). On August 20, 2003, the Ministry replied to a public inquiry that, in accordance with Article 41 of the 1997 law On Specially Protected Natural Territories, a state nature park is analogous to a national state nature park, holding the very same tasks and fulfilling the same functions. The difference lies only in that it is a specially protected territory of local significance!

The bureaucrats at the Ministry of Environmental Protection were not able to come up with any other arguments. Considering that the Natural Territory is also a Specially Protected Natural Territory, and its status is analogous to the status of the Ile-Alatau National Nature Park, we consider that the seizure of land from the latter meets the requirements of active legislation of the Republic of Kazakhstan (Ministry of Environmental Protection response No. 02-05-07/4061).

But why not do the opposite? That is, convert the land into a national park under the aegis of a central authorized body, ensuring more reliable protection for the territory?

In the conclusion of the letter, it is stated that the Ministry ensures that continual government control will be exercised over the observation of the environmental protection regime on the territory of the establishment. It is possible that control was ensured. But legality? No! On more than one later occasion, the Minister of Environmental Protection, A.S. Samakova, hopelessly threw up her hands, calling for the restoration of order to the Medeu Hollow.

In February 2004, six and a half years after the 1997 adoption of the law On Specially Protected Natural Territories, a government decision was passed (February 27, 2004, No. 240), defining the procedures for the demolition of buildings, structures and objects located within Specially Protected Natural Territories. To date, there has been no information about the demolition of anything from the given parks. But then the list of architectural masterpieces erected in their borders is several dozen pages long.

And the fate of the decision itself was unenviable. On November 7, 2006, it was repealed by a new government decision On Establishing Regulations for Providing for the Rental [!] of Land Portions on the Territories of National State Nature Parks in Order to Realize Regulated Tourism and Recreation (No. 1063). Since then, the question of demolishing objects and structures is no longer raised, and construction in the parks is proceeding at full speed.

Finally, the President tried to resolve the issue by applying procedures to Medeu Hollow. On June 11, 2004, a Presidential Directive was issued entitled On Measures to Preserve the Unique and Rare Landscapes on the Territory of the Republic of Kazakhstan (No. 474). In this directive, it is written in black and white that The government of the Republic of Kazakhstan over a three-month period reviewed the issue of assigning the status of an object of state natural-zapovednik fund** of republic-wide significance to the territory of the Shchuchinsko-Borovsky Recreational Zone, and the Medeu and Shymbulak Hollows, and will ensure their preservation by means of establishing prohibitions and limits to economic activity on these territories So all the same, it was more correct to convert the lands into the disposal of a national park!?

But what was the Presidents Directive to Almatys Akimat? A simple sound, and nothing more! Therefore, it was simply ignored, the government kept silent, and everything returned back to how it was.

In 2005, the issue was taken up by the Environmental Public Prosecutor of the City of Almaty. She conducted a compliance verification with environmental protection legislation on the territory of Medeu Park (Response from the Public Prosecutor No. 37-05).

Yet one more attempt by our environmental protection authorities, government and Presidents at constancy. And it resulted in regular reports and tabulations of violations and destruction, but anything involving the Akimat is like water off a ducks back.

At the end of 2006, the Almaty Akim, having fully come to believe in his impunity, declared a true war on the nature of Medeu Park and the Ile-Alatau National Park. Lets develop the Medeu Hollow!

Lets build parking lots, trade/entertainment centers, restaurants, bars, nightclubs! The latter, clearly, are utterly essential for the preservation and restoration of the unique natural complexes of the Zailiisky Alatau! And next up is the Kokzhailau Hollow, and then the next place, and then the next. And what about the world heritage?

There is world heritage here, where ones head spins from the smell of greasy dollars.

And again everything is decided under the cover of good intentions. The initiators of a new project announced that they intended to put an end to the violations of legality and to establish order at the Medeu Hollow. On the whole, it is anticipated that the project to reconstruct and develop the Medeu and Shymbulak Resorts [Authors note: Not Specially Protected Natural Territories, but resorts!] will have a long-term positive impact on Kazakhstans economy and will become an example of realizing a strategy of sustainable development of a community with viable infrastructure and the corresponding services and maintenance resources (Project to Reconstruct, p. 4).

A recent legend, but one that is difficult to believe! In late April 2007, without a positive conclusion from environmental assessments, and even without the completion of an environmental impact assessment, and without the agreement of the parks administrations, the companies began construction of an aerial tramway. And they began by cutting down Tien-Shan Spruce, digging out hollows and, as in the good old pre-environmental times, dumping the soil down a slope into a river.

And, finally, the last point in this history. To bring cynicism to the brim, the National Commission of the Republic of Kazakhstan on UNESCO and the Islamic Educational, Scientific and Cultural Organization (ISESCO) is headed by the Akim of Almaty City!*** The Convention Concerning the Protection of the World Cultural and Natural Heritage was developed and signed in 1972, under the initiative of UNESCO. Kazakhstan signed the convention in 1994 13 years ago! But as of yet not one natural object of Kazakhstan has been included in the World Heritage List! In July 2007, the Ministry of Environmental Protection conducted a sub-regional seminar on preparing the nomination for the Western Tien-Shan. And the nomination of the Ile-Alatau National Park has been postponed for an indefinite time. It is distinguished by universal value from a scientific point of view, and natural beauty, obviously, no longer interests anyone (The Convention, article 2).

The multiple facts of violations and noncompliance with the law On Specially Protected Natural Territories in Medeu Park and the Ile-Alatau National Park speak not simply to the inactivity of local bodies of power and the authorized environmental protection authorities. They attest to the paralysis of state power, which is a result of ever growing corruption.

In our opinion, the only way out of this growingly complicated situation is to restore legality and order. Only then can ecocide come to a halt.

Notes * Kazgiproleskhoz is a specialized state organization that plans the forestry economy. Lesproekta is a specialized state organization that studies and inventories forests.

** Objects assigned to the state natural-zapovednik fund are natural objects, including natural territories, animals and vegetation, that require very strict conservation measures and may not be used for economic activities.

*** By a Decree from the President of Kazakhstan on April 4, 2008, he was transferred to the position of the Akim of the city of Astana.

References (in Russian) Appeal from the participants of the Second Environmental Forum of Nongovernmental Organizations of Kazakhstan to the President, members of Parliament, and the Minister of Natural Resources and Environmental Protection. September 28, 2000.

Decision by the Akimat of Almaty ity from December 10, 2001 On the Medeu State Nature Park (No. 3/332).

Decision by the Akimat of Almaty City from January 24, 2003 On Measures to Improve the Environmental Situation in the Medeu State Nature Park and the Chimbulak Mountain Skiing Complex (No. 1/41).

Decision by the Almaty City Akim from October 1, 1999 On Questions Regarding the Organization of Medeu Nature Park (No. 906).

Decision by the government of the Republic of Kazakhstan from February 22, 1996 On the Creation of the Ile-Alatau National State Nature Park in Almaty Oblast (No. 228).

Decision by the government of the Republic of Kazakhstan from July 15, 2002 On Converting Individual Portions of Specially Protected Natural Territories into Lands of Other Categories (No.

780).

Decision by the government of the Republic of Kazakhstan from February 27, 2004 On Establishing Regulations for the Seizure (Purchase) of Land Plots for the Creation and Extension of Specially Protected Natural Territories from Land of All Categories, and the Demolition and Taking Away of Buildings, Structures and Objects on Specially Protected Natural Territories, and Providing for the Rental of Land Portions, Buildings and Structures on Specially Protected Natural Territories for Scientific, Tourist and Recreational Activities (No. 240).

Decision by the government of Kazakhstan from November 7, 2006 On Establishing Regulations for Providing for the Rental of Land Portions on the Territories of National State Nature Parks in Order to Realize Regulated Tourism and Recreation (No. 1063).

Decision from December 25, 2000 meeting of the Working Group on Including Natural Objects in the Republic of Kazakhstan in the UNESCO List of World Heritage Sites (No. 1) Decree from the President of the Republic of Kazakhstan from April 29, 1998 On Changing the Borders of the City of Almaty (No.

3939).

The Natural, Scientific Basis for Establishing the Medeu State Nature Park. Explanatory Notes. Almaty, 2000.

Order from the Chair of the Forestry, Fishing and Game Committee of the Republic of Kazakhstans Ministry of Natural Resources and Environmental Protection from January 23, 2002 On Measures to Preserve the Mountain Forests of Almatys Oblasts Zailiisky and Dzhungarsky Alatau (No. 7).

Presidential Directive entitled On Measures to Preserve the Unique and Rare Landscapes on the Territory of the Republic of Kazakhstan from June 11, 2004, (No. 474).

Project to Reconstruct the Medeu and Shymbulak Resorts.

Environmental Impact Assessment (EIA). Executive Summary. Almaty, 2007.

Reference and Resolution from the Panel of the Ministry of Natural Resources and Environmental Protection and the General Public Prosecutor of the Republic of Kazakhstan on the Question of Ensuring Legality in Specially Protected Natural Territories (abridged version). Kokshetau, August 26, 2000.

Response from the Ministry of Natural Resources and Environmental Protection No. 03-05-10/507 from February 23, 2001 to a public appeal.

Response from the Ministry of Natural Resources and Environmental Protection No. 02-05-10/375 from February 6, 2002 to a public appeal.

Response from the Ministry of Environmental Protection No. 02from August 20, 2003 to an inquiry from the Ecological Society Green Salvation dated July 10, 2003 (No. 028).

Response from the Specialized Environmental Protection Prosecutor of the City of Almaty No. 37-05 from March 24, 2005 to an inquiry from the Ecological Society Green Salvation dated February 21, 2005 (No. 012).

Translated by Michelle Kinman.



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