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The Supremacy of the Law Must Become the Norm

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The polluting of Almaty’s air by automobiles and industry has become a true disaster.  In 2008, emissions of polluted matter totaled 237,116 tons, of which 47,016 tons were discharged by stationary sources, including the “Teployelektrotsentral-2 power station” and individual housing sector.

One of the polluting enterprises is “Tsentrbeton Ltd” (formerly known as KSMK-3), located on Bokeikhanova Street.  The enterprise specializes in storing and selling cement and coal, and producing concrete and concrete products.  It began operations in 1998.  The surrounding houses and land plots were rendered within the borders of the plant’s Sanitary Protection Zone.  Ownership of the enterprise repeatedly changed hands; however the change in ownership in no way led to improvements in the environmental situation.


The Supremacy of the Law Must Become the Norm
(press release)

Kazakhstan Press Club
February 24, 2009, 12:00 PM

The polluting of Almaty’s air by automobiles and industry has become a true disaster.  In 2008, emissions of polluted matter totaled 237,116 tons, of which 47,016 tons were discharged by stationary sources, including the “Teployelektrotsentral-2 power station” and individual housing sector.

One of the polluting enterprises is “Tsentrbeton Ltd” (formerly known as KSMK-3), located on Bokeikhanova Street.  The enterprise specializes in storing and selling cement and coal, and producing concrete and concrete products.  It began operations in 1998.  The surrounding houses and land plots were rendered within the borders of the plant’s Sanitary Protection Zone.  Ownership of the enterprise repeatedly changed hands; however the change in ownership in no way led to improvements in the environmental situation. 

The residents of the closest homes have been deprived of the normal conditions necessary for life and relaxation.  Their homes and garden plots are constantly subjected to a covering of dust.  The cement falls onto the soil, causing a toxic impact on the garden crops.  In accordance with the conclusion of the 2003 state environmental assessment, the maximum level of cement dust pollution was exceeded by 114 times in territory zoned for residential use!

For many years, the residents have been seeking relocation from the Sanitary Protection Zone.  Yet both the authorities and the company’s owners have ignored their demands.  In accordance with Article 31 of the Constitution of the Republic of Kazakhstan, the state “establishes as its goal to protect the environment, such that it is favorable for human life and health.”  However, in this case, the opposite tendency has been observed.  For many long years, the rights of citizens to access to information, public participation in decision-making and access to justice in environmental matters have been violated. 

In 2000, the residents appealed to the courts.  After several years of litigation in the Republic of Kazakhstan’s courts, which did not achieve justice, citizens L. Gatina, A. Gatin and L. Konyshkova appealed to the Aarhus Convention’s Compliance Committee (Geneva) in 2004.  They reported on Kazakhstan’s lack of compliance with Article 9 on access to justice (for more detailed information, please see communication ACCC/C/2004/06 at http://www.greensalvation.org/index.php?page=Arhus).

In 2005, the Committee reviewed the claim and acknowledged that Kazakhstan had not provided effective means of legal defense in the review procedures concerning the lawsuit brought by the Gatins.   State bodies did not ensure the observance of environmental legislation.  For its part, the courts did not properly notify the parties of the time and place of hearings and of the decisions made.  This constitutes a “failure to comply with the requirements of article 9, paragraph 4, in conjunction with article 9, paragraph 3, of the Convention.”

However, the state bodies did not make any conclusions based on the Committee’s decision.  In 2007, “Tsentrbeton Ltd” introduced new components of its capacity, increasing the volume of freight traffic more than three-fold in comparison to 2003.  The yearly increase in freight traffic is confirmed by the conclusions of the state environmental assessments:
In 2000, there were 6000 tons of cement and 2000 tons of coal,
In 2003, there were 52,650 tons of cement, 48,400 tons of coal,
In 2004, there were 62,562 tons of cement, 48,400 tons of coal,
And in 2007, there were 317,360 tons of cement.

In connection with the ongoing violations of the rights of citizens to a healthy environment, the Ecological Society “Green Salvation” filed a new lawsuit in the interests of the Gatins on October 31, 2008.  On February 11, 2009, the Court of the Bostandyksky District of Almaty City issued a legal decision on this case: it recognized as invalid the conclusion of the state environmental assessment #03-08-543 from February 27, 2007, issued to “Tsentrbeton Ltd.”  The Court required the Ministry of Environmental Protection’s Balkhash-Alakolsky Ecology Department and the Almaty City Sanitary-Epidemiological Department to suspend the enterprise’s economic activities until its operations are brought into compliance with the requirements of the Environmental Code.

What makes the “Tsentrbeton Ltd” (KSMK-3) situation unique?

First of all, the Aarhus Convention’s Compliance Committee has issued decisions in favor of the public on three appeals from Kazakhstani citizens, including the claim from L. Gatina, A. Gatin and L. Konyshkova.  Thus far, this is the only appeal for which, thanks to the court decision from February 11, 2009, positive progress has been observed.

Secondly, like a drop of water, this situation reflects many of the environmental problems of our city and our country as a whole: severe pollution of the air and soil, violation of the Sanitary Protection Zone system, expansion of major industrial enterprises situated in the center of cities, and illegal environmental assessments.

Thirdly, this case displays the large quantity of deficiencies in environmental legislation and its implementation: grave violations to the human right to a health environment; the violation of international obligations adopted by the Republic of Kazakhstan; the arbitrary interpretation of laws; and the failure of state bodies to act.

Which human rights have been violated?

Article 31 of the Constitution of the Republic of Kazakhstan stipulates that “the state shall set an objective to protect the environment, such that it is favorable for human life and health.” 
But state bodies themselves provoked the multiyear conflict around KSMK-3. Citizens were unimpeded in purchasing homes next to an enterprise that had been inactive for many years, only to find, a few years later, that businessmen had been granted permission to renew the enterprise’s operations! Was this incompetence by the authorities or deliberate disregard for the interests of the residents and businessmen?  In the course of the ensuing ten years, the state bodies persistently justified their errors and failure to act, continuing to actively defend the interests of…the polluting enterprise.  The “polluter pays principle” has been converted in our country to the “consumer is paid off principle!”

Article 33 of the Constitution stipulates that “citizens of the Republic of Kazakhstan have the right to participate in the management of state matters directly and through their representatives…”

In accordance with Article 13 of the Environmental Code, natural person have the right “to participate in the decision-making processes of state bodies on environmental matters, as established by the legislation of the Republic of Kazakhstan.”

Yet the acknowledgement of rights does not alone signify opportunities to observe those rights.  Despite the 2007 adoption of the Environmental Code, a mechanism has not been created to ensure public participation in the decision-making process.  As a result, public participation has been reduced to public hearings alone, which are conducted in gross violation of legislative norms.  This does not enable the residents to participate in the decision-making or to influence the course of events.  In the case of KSMK-3, it was as if mysterious evil forces were at work making all of the decisions, rather than the laws of the Republic of Kazakhstan.

The Aarhus Convention provides citizens with the right to obtain information, to participate in the decision-making process in regards to environmental matters, and to access justice.  However, in the case of “Tsentrbeton Ltd” (KSMK-3), these rights have been and continue to be grossly violated.  In 2005, the Aarhus Convention’s Compliance Committee reviewed the Gatins’ claim, and recognized that Kazakhstan had not provided effective means of legal defense in the review procedures concerning the citizens’ lawsuit.

In Decision II/5a of the Second Meeting of the Parties, held in 2005, it is recommended that the Government “Consider introducing stronger measures to prevent any construction work going ahead prior to the completion of the corresponding permitting process with the required level of public participation.”  But this has not changed the situation either.

Why did the residents turn to the courts?

In connection with the ongoing violations to the right of citizens to a healthy environment, the Ecological Society “Green Salvation” filed a new lawsuit in the interests of the Gatins on October 31, 2008.

In accordance with statutes on the Ministry of Environmental Protection, the Ministry is to ensure government control for compliance with environmental protection legislation.

For this reason, the Balkhash-Alakolsky Ecology Department (BAED, formerly the Almaty City Territorial Department on Environmental Protection) was identified during the course of the trial as the primary defendant.

The plaintiffs’ demands consisted of the following:
- To recognize as invalid the conclusions of the state environmental assessment #03-08-543 (February 27, 2007), conducted by the Almaty City Territorial Department on Environmental Protection.
- To require the authorized authorities to suspend the economic activities of  “Tsentrbeton Ltd” until it is brought into full compliance with the requirements of the Republic of Kazakhstan’s Environmental Code.

The court decided in favor of the plaintiffs.

Conclusions

Unfortunately, the situation that has developed around “Tsentrbeton Ltd” is typical not only for the city of Almaty, but for the republic as a whole.  Under extreme market conditions, human rights have become small change.  Therefore, in the period immediately preceding the Republic of Kazakhstan’s Chairmanship of the OSCE, the state must take a decisive step to put a stop to the numerous violations of the human right to a healthy environment.  After all, the OSCE’s main tasks are: defending human rights; developing democratic institutions; and economic and environmental security.

Press Conference Participants:
Lyubov Anatolevna Gatina
– resident of the city of Almaty, whose interests the court is to protect;
Svetlana Filippovna Katorcha – Lawyer for the Ecological Society “Green Salvation”;
Sergey Georgievich Kuratov – Chair of the Ecological Society “Green Salvation”.


Translated by Michelle Kinman.