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HUMAN RIGHTS AND ENVIRONMENTAL PROTECTION Marija Milošević Sonja Stanišić Bojana Nedović Free Powerpoint Templates

Evolution of Environmental Law • The right to a Healthy Environment - Regulations and Practice of the European Court of Human Rights • The right to a Healthy Environment - Regulations and Practice in Serbia

Evolution of environmental law • Third generation of human rights - the rights of solidarity • Stockholm Declaration on the Human Environment in 1972 • Basle Convention in 1992 • Rio de Janeiro summit, Agenda 21 in 1992 • Millennium summit in 2000 • Earth Summit 2002, Johannesburg • Kyoto protocol, came into force in 2005 • African Charter on Human and Peoples' Rights • Additional protocol to the American Convention on human rights in the area of economic, social and cultural rights "PROTOCOL OF SAN SALVADOR" • The Aarhus Convention, entered into force in 2001

The relevant European instrument The Council of Europe and European Human Rights Convention Jurisprudence in the area of indirect protection of the environment Article 8, Article 1 of Protocol 1 The right to a Healthy Environment - Regulations and Practice of the European Court of Human Rights

Article 8 – Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Protocols 1. ARTICLE 1 Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Powel and Rayner vs. United Kingdom (1990) Lopez Ostra Vs. Spain (1994) Fadajeva vs Russia Cases

Article 13 – Right to an effective remedy Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. Article 6 – Right to a fair trial 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b) to have adequate time and facilities for the preparation of his defence; c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court. Article 13 and article 6

Herrick vs. United Kingdom Svidranova vs Slovak republic Guerra and others vs. Italy (free access to environmental information) Cases

The right to healthy environment Regulations and practice in Serbia • Strategies and action plans on environmental protection • The Proposed of National Environment Program • Sustainable Development Strategy with action plan • National Economic Development Strategy of the Republic of Serbia 2006-2012 • Energy Development Strategy until 2015 • The strategy of cleaner production

National Program for Integration into the European Union and the harmonization with the acquis communautaire • Law On Environmental Protection • Law On Environmental Impact Assessment • Law On Strategic Environmental Impact Assessment • Law On Integrated Prevention and Control of Environmental Pollution • http://www.lexadin.nl/wlg/legis/nofr/eur/lxweser.htm • The Integrated Pollution Prevention and Control Directive

Legal rules and their application The right to a healthy environment is guaranteed by the Constitution of the Republic of Serbia, Article 74: 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. Ministry of Environment, Mining and Spatial Planning

Provisions within -The Law on Environmental Protection- specifies Article 74 Subjects of the Environmental Protection System Article 4 The environmental protection system shall be carried out, within their respective competencies, by: 1) The Republic; 2) Autonomous Province; 3) Municipality, i.e. the city (hereinafter “local self-governance body”); 4) Companies, other domestic and foreign legal entities and entrepreneurs who use natural values in their economic and other activities, to endanger or pollute the environment (hereinafter “legal and natural entities”); 5) Scientific and expert organizations and other public services; 6) Citizens, groups of citizens, their associations, professional and other organizations. All the subjects of the environment system shall be obliged to preserve and develop the environment. Subjects’ Liabilities Article 5 In the realization of the environmental protection system, the Republic, Autonomous Province, local self-governance body, legal and natural entities shall be responsible for every activity with which they change or may change environmental status and conditions, i.e. for failing to implement environmental protection measures in compliance with the law. In performing their activities, legal and natural entities are obliged to provide: rational use of natural resources, calculation of environmental protection expenditures in their investment and running costs, implement regulations, namely take environmental protection measures in compliance with the law.

Access to InformationArticle 78State 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, namely phenomena monitored in keeping with the monitoring of imission and emission and warning measures or development of the pollution which may pose threat to human life and health, in compliance with this Law and other regulations.The public is entitled to access of statutory registers or records containing the information and data in compliance with this Law.

Civil law protection of the environment Article 103 Polluter causing environmental pollution shall be responsible for the occurred damage under the principle of objective responsibility. Legal and natural entity that through their illegal or inadequate acting has enabled or allowed environmental pollution shall also be responsible. Article 104 Polluter causing environmental pollution by its acting or non-acting shall be obliged to, without any delay, undertake measures determined by rehabilitation and plan of protection from accident, namely to undertake necessary measures in order to reduce damage in the environment or eliminate further risks, hazard or rehabilitation of the damage in the environment. f the damage made to the environment cannot be rehabilitated through adequate measures, the person that has caused it shall be responsible to pay charge equivalent to the value of the destroyed good. Judicial protection of the environment

Article 107 Every person affected by damage shall have right to reimbursement. The request for reimbursement may be submitted directly to the polluter or insurer, namely to the financial guarantee of the polluter where the accident happened, if such insurer, namely financial guarantee exists. If several polluters are responsible for the environmental damage, and if it is not possible to determine share of certain polluters, the costs shall be borne jointly and individually. The procedure for reimbursement shall be out-of-date in three years period since the damaged party found out about the damage and damage maker. However, this claim shall be out-of-date in 20 (twenty) years after the occurrence of the damage. Court procedure for reimbursement shall be urgent. The Republic shall keep the right to reimburse the means if there are no other persons with such right..

Criminal Code of the Republic of Serbia - Chapter XXIV of the Code Ecological criminal acts are illegal, socially dangerous behavior of individuals which are directed against the environment and for which the law provides criminal sanctions 8 years Mild Penal policy Criminal law protection of Environmental Law

In Serbia strategic objectives in the field of environment are not defined and the National Strategy on environmental protection has not adopted. The pace of reforms in the process of harmonization with the EU is extremely slow. The sectors that deal directly with ecology is allocated only 0.4 percent of the budget of the Republic of Serbia. Monitoring system of the environmental situation in Serbia must be promoted. Only 3 percent of Serbian citizens consider that the environment protection is priority. The state must find a fair balance between economic interests and protection the right of the individuals to a healthy environment. Criminal courts are ineffective when the protection of the environment is in question Each district court in Serbia does not comply with the provisions of the freedom of access to public information concerning the protection of the environment. There is inadequate cooperation between bodies of government in the proof process in criminal proceedings. Criminal Procedures in the field of environmental protection have been ineffective, and criminal policy is extremely mild. Positive regulation in the field of environmental protection is not consistently applied. Challenges

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