2021-02-06 10:50:15

When will the problem of the state's incapacity be solved in the environmental sphere?

The functionality of the state begins with the implementation of articles of the Constitution of Ukraine. Using the example of protecting the environmental rights of citizens, I became convinced how far the state mechanism in Ukraine is still far from the standard of countries where environmental safety is a real state, and not just a thesis on paper.

Having received positive decisions at the level of the Supreme Court, which I regard as a victory over enterprises, violations in the work of which led to a man-made accident and tragic consequences for people and high risks for the environment, now there are obstacles to bringing the guilty structures and persons to justice. Therefore, on this issue, I officially turned to the guarantor of the Constitution and the leadership of Ukraine - President Volodymyr Zelenskyy and Prime Minister Denis Shmygal.

June 8, 2015 in the Vasilkovsky district of the Kiev region near the villages of Kobtsy and Kryachki (Putrivsky village council), p.t. Glevakha at 17 o'clock at the oil depot of Pobutrembudmaterialy LLC (EDRPOU code 23585115), known as the object of the BRSM-Nafta group, a large-scale fire began, which lasted until June 20, 2015.

According to expert opinion No. 4-20515 of June 18, 2015 of the State Emergency Service of Ukraine, the fire was classified as a man-made emergency at the regional level (code - 10220NS). In connection with the incident, by order of the Cabinet of Ministers of Ukraine No. 583 dated June 9, 2015, a special government commission was created to eliminate the consequences of the emergency.

Official documents of the Government Commission established and recorded the following facts: death of 6 people during a fire and injuries of 16 people; participation in extinguishing a significant number of specialists (937 people) of special units and special equipment (117 units); the tank farm was not put into operation, which is a violation of the requirements of the Law of Ukraine "On the regulation of urban planning activities"; numerous violations of town-planning legislation, rules of technogenic, fire and environmental safety, due to which the tank farm operated as an emergency hazardous facility; the fire caused significant material damage to the state; the fire had negative consequences for the natural environment; the accident posed a threat to the life and health of people in several settlements due to the proximity of the tank farm (50 meters) to the military ammunition depot.

I emphasize that the threat of ammunition detonation was obvious, and in the event of detonation, a fire tornado 20 km long would arise, which could destroy several settlements, including the city of Vasilkov.

This development of events in the first 14 hours was prevented thanks to the selfless actions of firefighters, who extinguished the fire in conditions of uncertain characteristics of the object, not put into operation. The government commission found that the cause of the fire was the production of gasoline mixtures (counterfeit) using artisanal electrical equipment (artisanal electric pumps not manufactured at the factory), the scale of the fire was caused by violations of the rules of technical and environmental safety (primarily due to the small distance between the tanks ).

This conclusion was further confirmed by the pre-trial investigation. Also, the Government Commission has documented the negative consequences for the environment according to the research of such institutions:

- State Institution “Institute of Hygiene and Medical Ecology named after A.N. Marzeev National Academy of Medical Sciences of Ukraine "(protocol of soil research No. 4 of June 24, 2015, protocol of soil research No. 5 of June 30, 2015, protocol of research of fruits and vegetables No. 170.15 of June 22, 2015, explanatory note to the protocols);

 - State Institution "Kiev Regional Laboratory Center of GSES" (protocol No. 014 of June 16, 2015);

- by the Ukrainian laboratory for the quality of safety of products of the agro-industrial complex (research protocol No. 0759-N dated 08/11/2015 and No. 0219-4 dated 08/11/2015 with an explanatory note to them).

All these studies are united by the fact that they are performed by state institutions on certified equipment and coincide with each other.

Studies have shown that within a radius of up to 15 km from the epicenter of the fire - multiple excess (in some cases more than 20 times) pollution of the environment (land and water) with benzo (a) pyrene, polyaromatic hydrocarbons, sulfur oxides, significant pollution with harmful substances in fruits and vegetables. products.

Excessive pollution was recorded in all samples selected by these institutions without exception. At the same time, the State Institution “Institute of Hygiene of Medical Ecology named after A.N. Marzeev ”of the National Academy of Medical Sciences of Ukraine in an explanatory note to research dated June 30, 2015, based on the data obtained, as a result, it summed up that the level of benzo (a) pyrene and heavy metals in soil and vegetable products is the result of an extreme situation, andthe results of flushing from the surface of berry products indicate that the pollution occurred due to the sedimentation of harmful substances from the air, and is not the result of transfer from the soil.

The explanatory note was signed by scientists: director of the institute, academician, doctor of medical sciences, professor A. Serdyuk, doctor of medical sciences, professor V. Stankevich, and also doctor of medical sciences, professor I. Chernichenko.

The event and its consequences caused a wide public resonance, both in Ukraine and directly in the above region. However, the BRSM brand structures did not admit responsibility for the fire, contrary to obvious facts, claiming that it was caused by a terrorist act. In this situation, local residents took the initiative to defend their rights in court by violating the ecological balance of the area of their residence. This initiative was supported by the Risk Reduction International Fund (Chairman Vladimir Kosterin, owner of the green TV channel Tonis in the 2000s) in partnership with Legal Firm Imperative Plus LLC.

According to Part 1 of Art. 50 of the Constitution of Ukraine everyone has the right to a safe environment for life and health and to compensation for harm caused by violation of this right. After collecting the evidence base on the basis of this constitutional norm, more than 600 local residents filed claims against three enterprises of the BRSM brand that operated the oil depot (Pobutrembudmaterialy LLC, Parkom Trans LLC, Ukrtranssoil-2009 LLC). registration of defendants in the Obukhovsky District Court of the Kiev Region for compensation for moral damage.

The statement of claims was based, incl. on the study of international judicial practice. So, in the UK in 2005 there was a fire similar to that in the Kiev region at the Bunsfield oil depot near London. The interference in the private life of society due to the violation of the right to a safe environment in the oil owner's company has become a reason for British lawyers to file claims from local residents for compensation for moral damage.

In court, the company immediately admitted its guilt, proposing an amicable agreement, as a result of which compensation for moral damage was carried out and funds were allocated for the greening of the contaminated area. Thus, the social and environmental responsibility of business was demonstrated, and the state and the judicial system fulfilled their functions.

Including, in order to find out in practice the operation of European standards for the protection of the population, in Ukraine, lawsuits were filed by analogy. Based on purely Ukrainian realities (Ukraine is not England), the judicial protection of the victims lasted about 5 years. Court cases were considered in 9 (nine) proceedings. During the consideration, about 100 (one hundred) plaintiffs died. In the end, all court cases were completed in favor of the affected local residents. In seven cases, the final decisions were adopted at the end of the cassation procedures on complaints against the structures of the BRSM brand by the Supreme Court (for 2020, decisions in cases: No. 372/1308 / 16-4 of February 19, No. 372/4399/15-c of 26 February, No. 372/1771 / 16-4 of March 12, No. 372/1243 / 16-4 of March 18, No. 372/7241 / 16-4 of April 8, No. 372/980 / 16-4 of July 29, No. 372/4412 / 15-4 dated September 9).

In one case, the final decision was made by the Kiev Court of Appeal, in another one by the Obukhov District Court of the Kiev Region. The court decisions in the last two cases were not contested by the defendant, since they were taken on the basis of the practice established by the Supreme Court. Thus, the rights of 559 local residents were protected in court.

Moral damage per person is awarded in the range of 50 thousand UAH. up to 70 thousand UAH The total amount of the awarded compensation for moral damage amounted to UAH 36 million 70 thousand. (copies of these court decisions were also provided to the Office of the President and the Secretariat of the CMU). Also, in order to protect their rights, the injured firefighters and family members of the dead firefighters (12 plaintiffs) applied to the court with the same legal entities with a joint claim for compensation for moral damage.

By the decision of the Obukhovskiy District Court of the Kiev Region of May 20, 2019, which upheld the ruling of the Kiev Court of Appeal of October 30, 2019, the claim was satisfied with the award of compensation for moral damage in the total amount of UAH 100 million.

In all cases won (both environmental and firefighters), a compulsory enforcement procedure has been initiated. At the same time, today it is already clear that in order to avoid liability from the list of legal entities of the Belarusian Republican Youth Union, the beneficiaries have withdrawn all assets and, obviously, there is a problem with the implementation of the court's decision.

It is also clear that structurally the BRSM brand group of companies is an integrated holding complex of limited liability companies, which is deliberately built in such a way as to avoid the risks of liability for the redistribution and transfer of assets, if necessary.

Meanwhile, according to the Convention of June 22, 1993 on the Prevention of Major Industrial Accidents, workProviders are obliged to take measures that minimize the consequences of accidents. Civil society, represented by expert and human rights groups, has done enough for state bodies to show their capacity to protect the rights of citizens. Moreover, if it is impossible to enforce court decisions, 570 lawsuits will be filed with the European Court of Human Rights against Ukraine. Indeed, in a state governed by the rule of law, a commercial group cannot work without consequences for itself, which is responsible for the harm caused, established in court regarding hundreds of citizens.

In addition, court decisions of the ecological direction proved at the highest judicial level the fact of ecological excess pollution of a large territory, which (unlike the English case) was never deactivated, therefore, violations of the rights of society continue, for which the state should already be responsible. These violations concern not only the persons who have filed claims, but also the entire population living in the specified territory.

Turning to the top officials of the state, we hope that the case of a fire at the Belarusian Republican Youth Union's oil depot will be a lesson for state bodies on the need to implement an effective system for preventing such man-made incidents and create an efficient system of responsibility, both in government bodies and at the level of commercial structures, which also provides solving the problem of corruption in Ukraine.

I am convinced that the state should personally protect the rights of citizens with the inducement of the BRYU structures to compensate for the proven moral harm; to implement a set of organizational, administrative and environmental measures to decontaminate the contaminated area and restore ecological balance on it.

Also, firefighters who were injured and the families of dead firefighters are counting on real protection by the state. It was the injured firefighters who protected the region from an even greater tragedy - the physical destruction of settlements and thousands of people. Did the state assess their feat?

 

Lawyer,

Head of LLC "Legal company" Imperative-plus "

Alexander Lupeiko