The 1978 Law of Contracts and Torts envisages the submission of a specific type of lawsuit that may be filed by one or more people when one or more people are at risk of harm. Such lawsuits have been dubbed “environmental lawsuits” in legal parlance. However, there are no records that anyone has ever filed such a lawsuit in the past 40 years. BCHR conducted a several-month research on legal protection of the environment. The handbooks to be presented later this month provide an overview of the valid framework for environmental protection and the legal instruments that citizens and organisations may apply to protect their constitutionally guaranteed right to a healthy environment. BCHR’s associate Dr Aleksa Radonjić told Vreme that the lawsuit provided for in the Law of Contracts and Torts was clearly introduced to protect the environment, although it is not called an environmental lawsuit. “Under Article 156 of the Law of Contracts and Torts, everyone may demand of others to prevent occurrence of harm or eliminate the risk of harm and take measures to prevent the occurrence of harm.” Environmental lawsuits are preventive, and the risk of harm may concern the plaintiff or an indeterminate number of people. Under the law, such laws may be filed by individuals or civic associations when there is risk of harm. Not one such lawsuit claiming harm to a larger number of people has been filed in Serbia since 1978. The courts only ruled on lawsuits filed by one person against another. The handbooks we prepared depart from the constitutional right to participate in the protection of the environment. The Belgrade Centre for Human Rights collected all the relevant information needed by those who want to resort to legal means to protect the environment need,” Radonjić added.CAPITAL v PUBLIC INTEREST: The cadastre of small hydropower plants (SHPPs) envisages the construction of over 800 SHPPs in all parts of Serbia. Due to the low hydro potential of many of the rivers on which HPPs are to be built, nearly all the water will be redirected to pipes and the river beds will dry out. If the SHPPs are built, the exercise of the constitutionally guaranteed right will directly clash with the economic interests of a small number of individuals, who will be selling electricity at privileged prices. “We have short-term economic interests clashing with the long-term interests of all of us in Serbia now,” says Radonjić. “People in power apparently don’t realise that no matter what decision they may make now, they will be breathing the same air and drinking the same water as we do.” Under the valid law, environmental lawsuits may be filed by ordinary citizens and NGOs, which need not focus on environmental protection. Thanks to the support of the Ministry of Environmental Protection, the Belgrade Centre for Human Rights will publish two handbooks this month on legal protection of the environment. One of them is intended for experts and the other for NGOs and citizens. “Citizens should be aware of the possibility of initiating a civil suit. That they have at least that opportunity,” says Radonjić. He adds that the legal system must be interpreted in its entirety and that the Constitution applies directly. Environmental lawsuits are the most direct chance for civic engagement in the legal fight for environmental protection. “If they have the money, citizens and organisation have a legal possibility to pursue to proceedings to the end,” Radonjić says, describing the current situation as a fight between David and Goliath, because most of those who want to file environmental lawsuits cannot afford to do so, while those they want to sue have the capital.
EXPECTATIONS: BCHR associate Ivana Stijelja, who is completing her PhD in environmental law, says that the practice in Western European countries allowing environmental lawsuits shows that NGOs have been more successful than individual citizens in such civil proceedings. “Organisations are more likely than citizens to have enough money to pursue such court proceedings to the end,” she says. Stijelja underlines that the environmental expert analyses required in such proceedings are extremely expensive because they are multidisciplinary. “Given that we already have a legal mechanism allowing anyone to initiate proceedings in the interest of citizens, perhaps the state should step in to defend public interest and secure legal and financial assistance in such disputes,” she says. In late September 2018, the Serbian Government endorsed the Draft Legal Aid Act, introducing systemic free legal aid in Serbia for the first time. This is the first time that Serbian law recognises civic associations as providers of legal aid, which means that, once the law is adopted, organisations such as the BCHR can legally represent citizens in such disputes. Under the Draft Act, legal aid may be extended also by law graduates working in civic associations (not only lawyers in the local self-governments) unless the law governing the relevant procedure requires that a party must be represented by a lawyer. However, the adoption of this law is pending and, until it is enacted, the court fees have to be borne exclusively by the individuals and organisations that initiate the process. According to Stijelja, the NGOs are not in a much better position than the citizens when it comes to initiating such expensive proceedings. “Most NGOs, especially environmental NGOs, do not have law graduates on staff. We cannot expect of NGOs to file environmental lawsuits at the moment, because they usually operate on modest budgets; the donations in this area are relatively small and most organisations are barely making ends meet,” says Stijelja. There are 3544 NGOs registered with the Business Registers Agency specifying environmental protection as their field of activity. However, the number of such organisations actively pursuing environmental protection is much smaller and the number of those among them that are financially stable and sustainable is negligible. According to a research conducted by the BCHR, covering 160 environmental organisations in Serbia, 15% had no annual budget in 2017, 25% had an annual budget less than €1,000, and around 20% had an annual budget of €1,000-5,000 – that is the activities of 60% of the associations were symbolic and implemented thanks to the members’ enthusiasm, whereas only five percent of the organisations (9 out of 160) had an annual budget exceeding €100,000. Radonjić added that there were organisations in Serbia focusing on human rights, but that they did not recognise environmental protection among issues they should be dealing with. BCHR associates are of the view that cooperation between human rights and environmental organisations would be useful, especially since the former are experienced in extending legal aid. However, a court’s ruling in favour of the person who filed an environmental lawsuit is not the end of the legal tangle. In the event the defendant does not enforce the decision within the set deadline, the plaintiff, and only the plaintiff, is to initiate enforcement proceedings. “So, the case is de facto frozen if the lawsuit had been filed by an organisation that has dissolved in the meantime or an individual who has died in the meantime, or they still exist but cannot afford the enforcement proceedings,” he says. The next step would involve advocating amendments to the law, to facilitate the conclusion of proceedings conducted in public interest. “The handbooks prepared by the BCHR advocate such amendments, to improve the efficiency of environmental lawsuits,” says Stijelja. Unfortunately, this April, the Administrative Court ruled in favour of the investor and penalised the Ministry of Environmental Protection for withdrawing its consent to the construction of the SHPP Pakleštica on Stara Planina. Stijelja says that the analysis of the case-law showed that the court only reviewed the lawfulness of the administrative enactment (the fact that the investor had all the requisite permissions) and expediency, but had not reviewed the decision on the merits. Radonjić adds that in such proceedings, it must be presumed that harm to the environment will incur harm, considerable harm, to a large number of persons. “That’s why the defendant should bear the burden of proving that no harm will occur”. Although we do not have case-law indicating how the courts rule on environmental lawsuits, we hope we will soon have the opportunity to see such a trial. The one thing we are not lacking in Serbia at the moment is reasons for filing environmental lawsuits.
Excerpts from a Vreme report, available in Serbian at ovde
