2018-09-19 13:10:21

Protection of the constitutional right of ecologically safety environment

The majority of the population of Ukraine lives in the zone of increased environmental risks, which is one of the reasons for the low life expectancy of Ukrainians: average 66 years. In comparison with the citizen of Western European countries the difference is 10-15 years. To change the situation and to create prerequisites for an increasing of life expectancy, government has to make a new state policy that would reflect the ecologizationneeds. This means a transition to a safe and resource-efficient development model that takes into account equally economic, social and environmental aspects.

The victory over the lobby of polluters in theauthorities depends on the activity of the society, because this lobby is not interested to invest in the ecologization of enterprises and regions. To strengthen the positions of active people and public organizations, the Risk Reduction Foundation with human rights defenders introduce a methodology for protecting environmental rights so that civil society can protect itself in the courts. The experience of countries such as Germany, the United Kingdom, the United States and Switzerland showed the effectiveness of the approach when judicial decisions on environmental issues contributed to the implementation of new standards for the safety of enterprises, the restoration of ecosystems and the formation of an effective system of liability for violations of environmental law.

The Constitution of Ukraine indicates that a person, his life and health, honor and dignity, inviolability and security are recognized as the highest social value. The protection of environmental rights is guaranteed by the 16th and 50thArticles of theConstitution: provision of environmental safety and maintaining ecological balance in Ukraine, overcoming the consequences of the Chernobyl disaster – a catastrophe of a planetary scale, preserving the gene pool of the Ukrainian people is the state's direct responsibility; every citizen of Ukraine has the right to a safe and healthy environment and compensation for damage caused by the violation of this right.

The courts have already been running for three years in the Kyiv region that concerns the work of the objects of three forms of ownership: the private (the BRSM tank farm in the Vasilkiv district), the municipal (solid waste landfill in the Kiev-Svyatoshinsky district), the state (Triplolthermal power station that operates by PJSC "Centrenergo" in Obukhov district). The claimed claims to polluters are based on the provisions of such legal acts as the Convention for the Protection of Human Rights and Fundamental Freedoms, the Aarhus Convention, the Basel Convention, the Civil Code of Ukraine, the Law of Ukraine "Environmental Protection", the Law of Ukraine "Protection of consumer rights" and also takes into account the jurisprudence of the European court of human rights.

The defense of constitutional rights is carried out through appeals of the affected citizens to the court with claims for compensation of moral damage to legal entities guilty of violating established standards for the pollution of the atmosphere, land, as well as groundwaters and open water reservoirs. In the process of collecting evidence and accompanying cases in courts, many important aspects are also required to implement measures aimed at preventing accidents throughout Ukraine and requiring timely response and government decisions.

In November 2016, the Obukhov district court of the Kiev region issued an important resolution, according to which the enterprises of the BRSM group of companies should compensate the moral damage to the residents of the Vasilkov district whowent to court. And in May 2017, the Court of Appeal of the Kiev region confirmed violations of the environmental rights of citizens and ordered to pay compensation of 80-160 thousand UAH, depending on the degree of harm done.

These claims are connected with the largest in the time of Ukrainianindependence man-made disaster – a fire at the tank farm of the BRSM company, which lasted more than a week. The fire occurred because of numerous violations of the safety rules for the operation of the tank farm (these facts were established by the state authorities long before the fire, but they were not prevented, so far no one of the officials was not punished), dozens of people were injured and were killed, local residents suffered from poisoning with benzopyrene and other combustion products. Then only thanks to the heroism of the employees of the State service of Ukraine for emergency situations (three firefighters were killed in extinguishing a fire), it was possible to avoid the ignition of ammunition depots (air strikes) that were located near the tank farm. The fiery whirlwind that would have arisen as a result of the explosion could destroy the town of Vasilkov and part of the Vasilkov district of the Kyiv region.

The fact of adopting a positive court decision in the case of the BRSM in the interests of the citizens forms a new paradigm for the responsibility of enterprises for the health and life of citizens living near the objects of increased man-caused danger.

Typical for Ukraine the problem of waste accumulation, the lack of infrastructure for their processing and reuse, the passivity of the authorities in its solution was shown in the example of the Kiev-Svyatoshinsky Industrial Department of housing and communal services located in the Kryukovshchinavillage. Experts found dozens of violations of construction and sanitary norms, lack of proper engineering structures (formally this is a landfill, in fact a dump). The results of the examination showed the penetration of hazardous chemicals (cadmium, mercury, nickel) into the ground, water and atmosphere, which explains the high level of oncological and infectious diseases of the population living near the landfill. In addition, the facility is located at a distance of 7 km from the international airport "Kyiv" (Zhulyany) and this is a direct violation of the provisions of the Air code of Ukraine, according to which the distance between the airport and landfills should not be less than 15 km (otherwise there is a risk of accidents from for birds that can fall into aircraft engines, which poses a great threat to flights). However, the municipality has so far organized "procedural sabotage" in the courts, instead of fundamentally eliminating this problem and thereby showing an example of the solution of similar situations in Ukraine.

As for Tripoli thermal power station, which belongs to the state-owned company of Centrenergo, it is important that the authorities show a positive example of how to modernize enterprises, thereby increasing their capitalization. According to the State sanitary and epidemiological service in the Kyiv region (2015), Tripoli thermal power stationaccumulated 82% of pollutant emissions into the atmosphere from all enterprises in the region. By the beginning of 2016, the specialists of the well-known international organization Greenpeace managed to draw attention to the problem of atmospheric pollution, which conducted an independent investigation and on the basis of images from space showed the dangerous influence of the Tripolskaya station on the ecosystem of the Kyiv region, which was also confirmed by the expertise of several Ukrainian institutions.

So we`ve got a question: if the central authorities are not able to reduce the damage caused by excessive emissions and dusting of the ash dump of the Trypropolstation located near the capital of Ukraine, which creates risks not only for the city of Ukrainka, but also for the Dnieper river and the entire Obukhov district (including Koncha-Zaspu and Kyiv, where live political and business elite of the country), what can ordinary people in Krivoy Rig, Mariupol, Zaporihya and other regions rely on?

 The recent decision of the Obukhov court of first instance in the case of the Tripolskayathermal power station (05.05.2018), when the judge supported the Centrenergo andrefused to satisfy the claim of the local people, showed that state-owned companies still have a special "immunity", therefore they take no action either to modernize enterprises or to compensate for damage to human health. Thus, instead of solving problems in the legal field, preconditions are created for mass protests and the downgrading of Ukraine in world ratings (on indicators of inclusive development, competitiveness, etc.). We hope that the second and third courts will make fair decisions.

Today, courts still consider over a violation of the requirements of the general's prosecutor of Ukraine on the timing of cases. Delaying trials and avoiding fair verdicts, judges become complicit in those who should be responsible for environmental crimes, slowly and massively "killing" Ukrainians, which can be viewed as ecogenocide or environmental terrorism.

I think that the recent activity of youth and their interesting in the protection of environmental rights is a great achievement. For example, the European association of law students ELSA conducts lectures based on the practice of environmental lawyers and analysis of the work of Ukrainian courts. Since 2016, the Ukrainian branch of the association has included environmental law in the priority of their work.

The goal of "clean and safe Ukraine" should become a national idea that will unite all citizens, regardless of age and situation. After all, in every region of Ukraine there is a high level of morbidity and mortality of the population due to air, soil and water pollution. The current situation requires active territorial actions from the territorial communities and the central government. This, in turn, will be an incentive for positive changes in other areas, because only an ecologically clean and safe region is attractive to people's lives, investments, development of entrepreneurship and job creation.


President of the international Risk Reduction Foundation

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