Communicated on 20 October 2015
THIRD SECTION
Application no. 14901/15
Aleksandar MASTELICA and others
against Serbia
lodged on 19 March 2015
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
1. Factual background
3. All the applicants are inhabitants of the settlements Ritopek, Leštane and Vinča which belong to the Belgrade municipality of Grocka.
4. On 14 October 1988 the Detailed Urban Plan for Construction of the Power Transmission Line in the Municipality of Grocka was adopted. According to this plan there were not many residential buildings or any other facilities which could present obstacles for the construction. However, the construction of the power line did not start at that time.
5. After 1988, the area was developed for residential and commercial purposes. Housing, schools, kindergartens, commercial and industrial buildings, and an orchard now exist, for which construction permits were issued in the normal way. None of the construction permits issued makes any mention of the projected power line.
6. On 2 June 2008 the Ministry for Infrastructure issued the Act on Urban Conditions for the Construction of the Power Transmission Line which provides for a power transmission line crossing over the settlements in question and which is based on the 1988 Detailed Urban Plan. This Act envisaged that the investor should submit the request for approval of the construction and to enclose a decision of the Ministry of Environment Protection approving environmental impact assessment.
7. On 11 June 2009 and 14 October 2010 the Government rendered decisions on public interest for expropriation of the land and facilities on that land for the purpose of the construction of the power line. These decisions were rendered on the basis of, besides other documents, the 1988 Detailed Urban Plan. They were published in the Official Gazette of the Republic of Serbia without making mention of any legal remedy.
8. On 27 July 2009 the Ministry of Environment and Spatial Planning rendered a decision on approval of the construction of power line.
9. In August 2010 the investor made environmental impact assessment.
10. On 31 December 2010 the Ministry of Environment issued to the investor a decision approving the environmental impact assessment.
11. On 23 August 2011 the investor submitted a written report on beginning of the construction work to the Ministry of Environment stating that the construction would commence on 31 August 2011 and would be finished within two years. However, the construction actually started only on 8 May 2014.
2. Complaint to the Ombudsperson
12. On an unspecified date the applicants complained to the Ombudsperson.
13. On 12 November 2014 the Ombudsperson found that the inhabitants were not adequately informed about the environmental impact and envisaged transmission line route, since they did not know anything about the construction of the power line until they received individual decisions on expropriation. The Ombudsperson issued an opinion that it was inappropriate and to the detriment of the inhabitant’s right to continue with the construction of the power transmission line on the basis of the 1988 Plan without taking into account that the situation had changed during the past almost 30 years and that many facilities were built on that land, when there was reasonable concern that the power line would adversely affect the environment and health of the inhabitants. The Ombudsperson further issued a recommendation for the competent authorities to make a reassessment of the transmission line’s influence on the environment, taking into account the actual situation in the field and fully informing the public and allowing all interested citizens to participate. Should they find that the negative influence may occur, the Ombudsperson recommended finding an acceptable solution for both sides, such as moving the transmission line to another location, moving the settlements and facilities or some other, better solution.
3. Proceedings before the Constitutional Court
14. On 14 April 2014 the applicants lodged an appeal to the Constitutional Court, complaining that they were not able to take part in the proceedings leading to the approval of the construction of the power transmission line, since they were not informed of that process and that the construction of the power line might have adverse health effects on them and their families.
15. On 15 September 2014 the court dismissed their appeal. It found only that the applicants could have filed a lawsuit with the Administrative Court against the decisions on the interest for expropriation, as well as the decision on the approval for the environmental impact assessment. The court, however, did not consider the applicants’ complaints that those decisions were never delivered to them nor that they had had no knowledge about them at the time relevant for using the legal remedy.
4. The medical report
16. On 25 April 2015, acting upon the applicants’ request, the Institute of Occupational Medicine and Radiological Protection “Dr Dragomir Karajovic” issued an opinion identical to the opinion of the Ombudsperson, emphasizing that electric and magnetic field radiation such that which the transmission line in question would emit might adversely affect the environment and seriously jeopardize the health of inhabitants, especially of children. The Institute proposed the same solution as the Ombudsperson.
B. Relevant domestic and international law and practice
1. The Constitution of the Republic of Serbia (Ustav Republike Srbije, published in Official Gazette of the Republic of Serbia, no. 98/2006)
17. Section 74 of the Constitution provides:
“Everyone shall have the right to healthy environment and the right to timely and full information about the state of environment.
Everyone, especially the Republic of Serbia and autonomous provinces, shall be accountable for the protection of environment.
Everyone shall be obliged to preserve and improve the environment.”
2. Environmental Protection Act 2004 (Zakon o zaštiti životne sredine, published in Official Gazette of the Republic of Serbia, nos. 135/2004, 36/2009, 36/2009, 72/2009 and 43/2011)
18. Section 9 of the Act provides:
“Every activity must be planned and implemented in the way that: causes minimal possible change in the environment; represents the smallest risk towards the environment and human health; reduces spatial burden and consumption of raw materials and energy in construction, production, distribution and utilization; includes the possibility for recycling; prevents or limits impact to the environment at the source of pollution.”
19. In its relevant part Section 78 of the Act provides:
“State authorities, those of the autonomous province, local self-governance units and authorized and other organizations shall be obliged to regularly, timely and objectively inform the public on the environmental status...”
3. Protection from Non-ionizing Radiation Act 2009 (Zakon o zaštiti od nejonizujućih zračenja, published in Official Gazette of the Republic of Serbia, no. 36/2009)
20. In its relevant part Section 3 of the Act provides that in accordance with the principle of the proportionality:
“Conditions and lawfulness of the use of the non-ionizing radiation sources of particular interest are determined and assessed in the light of the benefit for society in comparison with potential risks of adverse effect and taking into account the level and duration of exposure of the population in particular case, the age and health structure of potentially exposed population, the manner, time and place of the use of the source in question.... “
4. Planning and Construction Act 2009 (Zakon o planiranju i izgradnji, published in Official Gazette of the Republic of Serbia, nos. 72/2009, 81/2009, 64/2010, 24/2011, 121/2012, 42/2013, 50/2013, 98/2013, 132/2014 and 145/2014)
21. Section 53 of the Act provides:
“Information on a location includes data on possibilities and limitations of building on the land registry lot, based on the planning document.“
5. Expropriation Act 1995 (Zakon o eksproprijaciji, published in Offcial Gazette of the Republic of Serbia, nos. 53/95, 20/2009 and 55/2013 and Official Gazette of the Federal Republic of Yugoslavia, no. 16/2001)
22. Section 20 of the Act provided that:
“The Government’s decision on establishing the public interest for expropriation will be published in Official Gazette of the Republic of Serbia and will be considered as delivered to the parties in the proceedings on the date of publication.
The administrative judicial review proceedings could be initiated against that decision within 30 days from the date of delivery or publication of that decision in the Official Gazette.”
23. On 23 May 2013 the Constitutional Court found the part of this provision concerning the delivery of decisions inconsistent with the Constitution and international acts in force, especially Article 13 of European Convention for the Protection of Human Rights and Fundamental Freedoms. The court further found that given the way of delivering of such a decision the envisaged legal remedy (initiation of administrative judicial proceedings) against that decision became illusory. Considering that the decision was delivered when it was published in the Official Gazette in such proceedings which were initiated ex officio and where the owners of the property in question did not participate in those, the owner was unaware of these proceedings until the decision was published in the Official Gazette.
6. The Rio Declaration on Environment and Development
24. In June 1992 the United Nations Conference on Environment and Development, meeting in Rio de Janeiro (Brazil), adopted a Declaration intended to advance the concept of States’ rights and responsibilities with regard to the environment. “Principle 10” of this Declaration provides:
“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
7. The Aarhus Convention
25. The Aarhus Convention (“Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters”, ECE/CEP/43) was adopted on 25 June 1998 by the United Nations Economic Commission for Europe in application of Principle 10 of the Rio Declaration, and came into force on 30 October 2001. To date, 47 countries are Parties of this convention. Serbia has acceded to the Aarhus Convention on 31 July 2009.
26. Provisions of the Aarhus Convention relevant to the case are the following:
Article 4
ACCESS TO ENVIRONMENTAL INFORMATION
“1. Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:
(a) Without an interest having to be stated;
(b) In the form requested unless:
(i) It is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or
(ii) The information is already publicly available in another form.
Article 6
PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES
“2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure...”
“3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.”
Article 7
PUBLIC PARTICIPATION CONCERNING PLANS, PROGRAMMES AND POLICIES RELATING TO THE ENVIRONMENT
“Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public...”
Article 9
ACCESS TO JUSTICE
“1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.”
8. Recommendation 1614 (2003) of the Parliamentary Assembly of the Council of Europe
27. On 27 June 2003 the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights. The relevant part of this recommendation states:
“9. The Assembly recommends that the Governments of member States:
i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection;
ii. recognise a human right to a healthy, viable and decent environment which includes the objective obligation for states to protect the environment, in national laws, preferably at constitutional level;
iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention;
...”
COMPLAINTS
28. Relying on Articles 2, 3, 5, 6, 8, 13 of the Convention and Article 1 of Protocol No.1 to the Convention, the applicants complain in substance that they were not able to take part in the proceedings leading to the approval of the construction of the power transmission line, since they were not informed of that process although the construction of the transmission line may put their own health as well as the health of their families at great risk.
QUESTIONS TO THE PARTIES
1. Is Article 8 applicable in the present case?
2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8, as required by Article 13 of the Convention? In particular, was bringing a lawsuit in the Administrative Court an effective remedy in respect of the applicants’ complaints given the findings of the Constitutional Court in its decisions of 23 May 2013 and 15 September 2014?
In the affirmative, have the applicants exhausted the available effective domestic remedies?
3. Have the domestic authorities ensured that the decision-making process related to the construction of the power line involved appropriate measures in order to predict and evaluate the effects on the environment and to strike a fair balance between various conflicting interests at stake as required by Article 8 of the Convention (see, mutatis mutandis, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 128, ECHR 2003‑VIII)?
4. Is there a separate issue under any of the following Articles: 2, 3, and 6 of the Convention and Article 1 of Protocol No. 1 to the Convention?
In the affirmative, has any of these Articles been violated?
Appendix
No.
Firstname LASTNAME
Birth date
Nationality
Aleksandar MASTELICA
02/09/1978
Serbian
Zoran ANĐELKOVIĆ
05/06/1964
Serbian
Saša BLAGOJEVIĆ
04/08/1973
Serbian
Milorad ČOLIĆ
05/06/1949
Serbian
Živorad ĐORĐEVIĆ
18/02/1957
Serbian
Ljubiša GORUNOVIĆ
05/06/1964
Serbian
Dušan ILJIĆ
11/03/1954
Serbian
Momčilo IVANOVIĆ
11/09/1958
Serbian
Milanka JOVANOVIĆ
18/03/1962
Serbian
Aleksandar KIRILOV
17/07/1954
Serbian
Dejan KRSTIĆ
02/05/1966
Serbian
Zorica KRSTIĆ
18/03/1966
Serbian
Dušan MLADENOVIĆ
14/09/1956
Serbian
Ivan STAMENKOVIĆ
23/08/1954
Serbian
Branko STOJANOVIĆ
04/09/1956
Serbian
Zehadin ZULFIKARI
27/04/1954
Serbian
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