HUMAN RIGHTS / AN OIL DEMOCRACY, OR THE STORY OF BEREZOVKA
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Supreme Court of the Republic of Kazakhstan
010000, Astana, Levyi Bereg Reki Ishim, Ulitsa Tauelsyzdyk, d-39
Tel: (7172) 74-75-85, Fax: (7172) 74-78-13, Email: v_sud@kepter.kz

090000
Specialized Interregional Economic Court
Western Kazakhstan Oblast

090000, Western Kazakhstan Oblast Court

010000, General Public Prosecutor’s Office of the Republic of Kazakhstan

09000, Uralsk, Ul. Dostyk-Druzhba, d. 215
Office 306, representing the Ecological Society
Green Salvation, P.M. Kochetkov, P.M.

05000, Almaty, Ul. Shagabutdinova, d. 58, kv. 28
Ecological Society Green Salvation

090306, Western Kazakhstan Oblast
Burlinsky Raion, Berezovka, Anosova, S..Ya.

09000, Uralsk, Ul. Mukhita, 50/1 GU
Statistics Department of Western Kazakhstan Oblast
Khamzin A.

 
In reference to the civil case concerning the request by the public association the Ecological Society Green Salvation to the Head of the Government Department “Statistics Department of Western Kazakhstan Oblast”, A. Khamzin, about the acknowledgment of the activity by the responsible individual for the refusal to provide the requested information about pollution of the atmosphere by emissions from the enterprise, “Karachaganak Petroleum Operating, B.V.”, which violated the rights and legal interests of the individual, S. Ya. Anosova, the requirement to present information about the emissions from the enterprise, “Karachaganak Petroleum Operating, B.V.”, which are polluting the atmosphere, with the ordinance of the Review Board of the Supreme Court of the Republic of Kazakhstan from March 26, 2008 for implementation.

Attachment:
addressing: civil act No. 2-436/07 in one volume of 181 pages:
to four addressees — copies of the legal documents in five pages, a copy of the decision in five pages;
to the other addressees — copies of the decision in five pages.


Chairman of the Review Board                            A. Smolin

0105539



Decree of the Court
No. 4GP-64-08


26 March 2008
Astana

The Supreme Court’s Review Board on Civic Affairs of the Republic of Kazakhstan, consisting of the presiding representative of the Review Board A.S. Smolin, Judge G.B. Ak-kuova, B.K. Axmetov, V.V. Nozdrin, L.G. Poltorabatko, and with the participation of Deputy General Public Prosecutor of the Republic of Kazakhstan, R.N. Mamyrbaev, reviewing in open court session the civil case on the application of the public organization, the Ecological Society Green Salvation to the Head of the Government “Statistics Department of Western Kazakhstan Oblast” A. Khamzin on the acknowledgement of the action of the responsible person for the refusal to provide requested information on the emissions of the enterprise, “Karachaganak Petroleum Operating, B.V.” for polluting the atmosphere, violating the rights and legal interests of the individual, S.Ya. Anosova, which was required to present information on the emissions of the enterprise, “Karachaganak Petroleum Operating, B.V.”, polluting the atmosphere, and admitting to the complaint for review by the representative of the public organization, the Ecological Society Green Salvation through the power of attorney of P.M. Kochetkov for the decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast from May 7, 2007 and the statement of colleagues of the civil case of the Western Kazakhstan Oblast Court from 12 June 2007.

Established:

The public organization the Ecological Society Green Salvation (further, ES Green Salvation) appealed to the court with an application to the Head of the Government “Statistics Department of Western Kazakhstan Oblast” (further GD), A. Khamzin, on the acknowledgement of the activity of the responsible person on the refusal to provide the requested information on emissions of the enterprise “Karachaganak Petroleum Operating, B.V.” (further “KPO B.V.”), polluting the atmosphere, violating the rights and legal interests of the individual S.Ya. Anosova.. This individual was required to present the information on the emissions of the enterprise “KPO B.V.”, which was polluting the atmosphere, motivated by the presentation of the demand that on 16 January 2007, the ES Green Salvation, appealed to the GD with a request to present the information on the emissions of toxic substances into the atmosphere by the enterprise, KPO, B.V. However, A. Khamzin, the Head of the GD, refused to present the information, stating in his letter No. 7-1-45/127 of January 24, 2007 that the information was confidential.

The decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast of May 7, 2007 with regard to the application of the ES Green Salvation was a refusal.

The decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast from May 7, 2007 was unchanged by the decision of the Board on Civic Affairs of Western Kazakhstan Regional Court from June 12, 2007.

In the complaint for review, the representative of the ES Green Salvation, through the power of attorney of P.M. Kochetkov, requested that the decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast of May 7, 2007 be changed and the decision of the Board on Civic Affairs of the Western Kazakhstan Oblast Court from June 12, 2007, and make a new decision on the outcome of the application, considering the violation of norms of material and procedural rights by the courts.

Having listened to the report of Judge G. B. Ak-Kuova on the circumstances of the case and the arguments of the complaint, and the conclusions of the public prosecutor regarding the suppositions of the complaint and the materials from the civil case, the Board finds in the case of the legal acts subject to cancellation because of the following.

In accordance with Article 387 of the Civil Procedural Code, the existing violations of the norms of material or procedural rights provide the grounds for reconsidering the review procedures, which bear the legal force of court acts.

According to the facts of the case, a violation of the standards of material rights has occurred, which has resulted in an incorrect interpretation of the standard of the law.

In the complaint under consideration, the declarant claims that the ES Green Salvation, as a public organization, having the right to receive complete and reliable environmental information according to the standards of the Ecological Code, appealed to the GD “Statistics Department of Western Kazakhstan Oblast” with a request to obtain the annual data from the State Statistical Report Form 2-TP “Air” on emissions of polluting elements in the atmosphere from the enterprise, KPO B.V. for the years 2000-2006.

However, in the letter from the Department Head, A. Khamzin, No. 7.1-45/127 from January 24, 2007, the requested information was refused, because physical and legal entities are guaranteed the protection of state and commercial secrets, and the confidentiality of primary statistical information on the basis of personal responsibility of the employees of organs of state statistics and in accordance with the legislation of the Republic of Kazakhstan.

The declarant believes that the requested information does not qualify as a state or commercial secret. Furthermore, the ES Green Salvation requested information about the state of the pollution of the atmosphere by the enterprise KPO B.V., and not primary information about the legal entity KPO B.V.

The Supreme Court’s Review Board on Civic Affairs finds the stated argument of the complaint to have basis.

The Court, in refusing to satisfy the lawsuit filed by the ES Green Salvation, justified its conclusions, saying that the information requested by the declarant in the form 2-TP “Air” “Report on the Protection of Atmospheric Air” is primary statistical information.

In accordance with Point 2, Article 11 of the Law “On State Statistics,” the representative organ and its territorial subdivisions are required, within the limits of their capacity, to observe the confidentiality of primary statistical information on the basis of personal responsibility of the employees of the state organs of statistics in accordance with the legislation of the Republic of Kazakhstan.

Therefore, the Court came to the conclusion that the information requested by the ES Green Salvation is primary, and therefore, confidential.

Meanwhile, in accordance with Article 2 of the Law “On State Statistics”, primary statistical information—data about concrete physical individuals, legal entities and their structural subsections—introduced during statistical observation by organs of state statistics for statistical purposes.

As is clear from the materials from the case, the ES Green Salvation did not ask for evidence of the number of workers at KPO B.V., their salaries, profiles of their activity, or structural subdivisions. Therefore, it is impossible to agree with the conclusions of the Court that the requested information on the atmospheric emissions is primary information, and therefore confidential.

According to the Law of the Republic of Kazakhstan from October 23, 2000, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, signed in Aarhus (Denmark) on June 25, 1998 (further the Aarhus Convention) was ratified.

This Convention assigns special significance to the transparency of information regarding environmental pollution. First, this information cannot be called a commercial secret, and secondly, this serves as further basis for decision-making on the disclosure of confidential information. The Board proposes that when a public request for a document with a confidential character is received, the state organ must exclude the closed information from the document, providing access to the remainder of the document.

In the development of the provisions of the Aarhus Convention in the Concept of Environmental Safety from 2004-2015, approved by decree of the President of the Republic of Kazakhstan from December 3, 2003, No. 1241, public access to environmental information and the public’s participation in environmental decision-making was identified as one of the basic principles of environmental safety.

In accordance with Point 3, Article 4 of the Constitution of the Republic of Kazakhstan, international agreements ratified by the Republic have priority over national laws and are applied directly, except in instances when from the international agreement it follows that its application demands the promulgation of law.

In connection with what is set forth, the Board finds the possible application of Article 4 of the Aarhus Convention in the examination of this case.

Thus, in accordance with the provisions of this article in the request for the presentation of environmental information, it is possible to determine whether divulging this information would negatively impact:

a)    the confidentiality of the work of state organs in instances where this confidentiality is covered by national legislation;

b)    the confidentiality of commercial and industrial information in those circumstances when the confidentiality is protected by law with the purpose of protecting legal economic interests. In these parameters, information on emissions, related to environmental protection, is subject to disclosure.

The abovementioned bases for refusal are interpreted in a limited way with regard to the interest of the pubic in disclosure of the information and with regard for the fact that the requested information is related to emissions in the environment.

An analysis of the above-described standards, including both national legislation and an international agreement, demonstrate that the requested environmental information cannot be closed, and the presentation of this information will not negatively impact the confidentiality of the work of the state organ, in particular the organ of statistics. Furthermore, information on emissions, related to environmental protection, must be disclosed.

Paying attention to the decreed responsibility, the Board believes that the refusal of the statistics organs in providing information on emissions into the atmosphere contradicts the standards of the international agreement, and in this connection the legal decision is liable to repeal with the new decision on the satisfaction of the demands of the declarant.

On the basis of what has been stated here, and guided by Article 398 of Civil Procedural Code, the Review Board.

ORDERED:

The decision of the Specialized Interregional Economic Court of Western Kazakhstan Oblast from May 7, 2007, and the decree of the court of the Board on Civic Affairs of the Western Kazakhstan Oblast Court from June 12, 2007 are repealed.

The lawsuit of the ES Green Salvation is satisfied.

To require GD “Statistics Department of Western Kazakhstan Oblast” to provide the ES Green Salvation with the requested environmental information.

To satisfy the reviewed complaint.

Chairman                                                                                                            A.S. Smolin

Judges of the Review Board: G.B. Ak-kuova, B.K. Akhmetov, L.G. Poltorabatko, V.V. Nozdrin

Copy verified by Judge G.B. Ak-kuova



Unofficial translation from Russian to English by Crude Accountability.