THE DEVELOPMENT OF THE RIGHT TO PUBLIC PARTICIPATION IN ENVIRONMENTAL MATTERS AS A NEW CONCEPT OF ADMINISTRATIVE DECISION MAKING IN SERBIA.

• Author: Drenovak-Ivanovic, Mirjana

1. Introduction

   Positive environmental law in Serbia is characterized by a number of laws and general acts. The framework for environmental protection is regulated by the Law on Environmental Protection (hereinafter: LEP) and the Law on Amendments to the LEP, Law on the Environmental Impact Assessment (hereinafter: EIA) and the Law on Amendments to the EIA, the Law on Strategic Environmental Impact Assessment (hereinafter: SEIA) and the Law on Integrated Environmental Pollution Prevention and Control (hereinafter: IPPC). In addition, Serbian Positive Environmental Law contains a number of sectoral laws governing the protection of water, air, soil, nature, protection from noise, ionizing and non-ionizing radiation, waste management and handling of hazardous materials: Nature Conservation Law, Law on Waste Management, Law on the Protection from Environmental Noise, Law on Biocidal Products, Law on Air Protection, Law on Non-Ionizing Radiation Protection, Law on Protection against Ionizing Radiation and Nuclear Safety, Law on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons.

   Since there is no specific law on access to environmental information in Serbia, the right to access environmental information is recognized as a right to access public information and is governed by the Law on Free Access to Information of Public Importance and the LEP.

   In comparative theory and law, the nature and the scope of the public's right to participate in administrative decision making, the obligation of the state to facilitate public involvement in its legislative processes and the consequences of the failure to comply with that obligation were discussed in a number of debates (Adler, 2001; Applegate, 1988; Arnstein, 1969; Bell, 2004; Beierle, 1998; Beierle and Cayford, 2002; Bernstein, 2004; Bray, 1991; Brown, 1970; Ebbesson and Okawa, 2009; Gaventa and Valderrama, 1999; Galligan and Smilov, 1999; Dickinson, 1927; Elliott, 1992; Elhauge, 1991; Jreisat, 2002; Kim, 2009; Kunnecke, 2007; Kuhn, 1999; Lee and Abbot, 2003; Pomade, 2010; Poto, 2008; Redford, 1954; Roberts, 2004; Rose-Ackerman, 1994; Rowe and Frewer, 2000; King, Feltey and O'Neill, 1998; Stewart, 1975; Coenen, 2009).

   The development of the public's right to participate in environmental decision making in Serbia can be divided into three stages. The first stage covers the period up to 2004, which is the period before the LEP and the Law on Amendments to the LEP, EIA, SEIA and IPPC were adopted. The public's right to participate in environmental decision making in the process of EIA was not established prior to the enactment of these laws. Due to this, the issues on legal standing were regulated by the GAPA. That had a large impact on the development of the public's right to participate in environmental decision making, since the models provided by the GAPA do not specifically address administrative decision making in matters related to environmental protection.

   In practice, it led to a very narrow interpretation of 'the public' in environmental decision making. In section II, the article points to specific examples of administrative and judicial practice in Serbia. Bearing in mind the comparative perspective (Fisher, 2010; Posner, 1997; Elliott, 2008; Lazarus, 2009), these examples will be discussed in section II.

   The second stage refers to the period after the adoption of the LEP and the Laws on Amendments to the LEP, EIA, SEIA and the IPPC, which defined the terms 'the public' and 'the public concerned'. New standards were introduced for public participation in environmental decision making and further development of the public's right to public participation in environmental decision making, as well as the possibility for NGOs that promote environmental protection to be involved in this process. However, many drawbacks of this law emerged over time. This primarily refers to the noncompliance of deadlines for public participation in certain stages of the EIA and those for access to environmental information, which in practice leads to inability to provide the public with timely access to environmental information and the information contained in the EIA study. In practice, there are several instances when the public was not allowed adequate involvement in the environmental decision making, in the projects of national significance. These cases will be discussed in section III.

   The third, current, stage refers to the attempt of introducing the new model of legal protection in the GAPA. At the end of 2011, the Ministry of Governance proposed a Draft of the new GAPA. It stipulates that the administrative appeal can be submitted by groups of persons without legal capacity if they can be holders of rights and duties decided on the administrative proceeding or if they are representing collective interest, such as interest of environmental protection, that can be influenced by the administrative decision (Article 52 paragraph 4 of the Draft of new GAPA). The question then arises as to whether this stipulation would ensure the right to public participation in environmental decision making in Serbia. And further, are environmental organizations recognized as a subject in environmental decision making? Recent developments in the legislation and case law, as well as possible future changes in this respect, will be discussed in section IV.

   The aims of the paper are to examine the possibilities for public participation in environmental decision making as a new concept of administrative decision making in Serbia, to analyze the legal nature of the right of public participation, to describe the prerequisites for its application, and to explain the uniqueness of its application in environmental protection. In order to analyze the legal consequences of the transformation of the right of public participation in the Serbian legal system, a special attention is given to the Serbian Supreme Court, the Administrative Court, and the Constitutional Court case law, with the overview of the European Court of Justice case law.

2. A right of the public to participate in environmental decision making before 2004

   The analysis of the implementation of the GAPA and the LEP in Serbia indicates that social actors used to be allowed to participate in citizen's forums and decision making in environmental matters, and their role was important only if they were directly and individually concerned.

   Prior to the adoption of a set of laws in 2004, in administrative authority's practice the public was not recognized as a party that is directly and individually concerned. The right to participate was available only for the parties which derived that right from ownership or related rights. An example is found in the decision of the municipal authority in the following case. A request for building a gas station was submitted to the municipal administrative body in charge of the construction works. On this occasion, a number of citizens addressed the municipal authority with an intention to participate in the licensing process. The municipal authority, acting in accordance with the GAPA, held that only the neighbors, and not the people who do not live close to the land planned for building a gas station, should be allowed the right to participate in the licensing process. The decision contained the following explanation: 'a group of citizens cannot be a party to the proceedings, as it is not the holder of the rights and obligations and legal interests which are solved in the proceedings under Article 40 of GAPA, and because the building site of a gas station is not adjacent to the parcels or buildings of interested parties' (The decision of the Urban Planning Directorate of Kragujevac of 15 March 2002).

   In these cases the public attempted to be involved in decision making by submitting requests, motions, reports, petitions and other forms of applications other than an appeal in the administrative procedure. An illustrative example is found in the case also related to building a gas station. Regarding the request to build a gas station with a restaurant and other facilities for various purposes, the competent authority ordered the implementation of impact assessment. Building these facilities was planned on the plot that served as a buffer zone between the highway through the city and the blocks of residential buildings. The competent municipal authority noted that the requirements for construction were met (The decision of the Urban Planning Directorate of Kragujevac, of 20 September 1996). Only then did the residents of apartment blocks that surround the land of planned construction site learn for the first time of the proposed project and the decision of the competent administrative authority. Before that, there were no notifications about project planning, or calls for expressing an opinion, even for the inclusion of the public in any form, because EIA was still pending, and these activities are not standardized by the GAPA. With a notion of the potential impact of such a facility on the environment, all residents of the local community signed the petition that stated the grounds against decisions of administrative bodies, which they could not challenge because they were not recognized as a party to the proceedings. In addition to the petition, they submitted the information received from the other city and state authorities, regarding the participation of citizens in some other proceedings, as parties to the proceeding. Based on information collected in that manner, they argued their request from the petition with relevant documentation which indicated that the subject property is to be built on a part of a landscaped land, that the highway already causes noise and air pollution over the allowed values and levels, and that the level would increase further by building the planned facility. The petition pointed out that the detailed regulation plan does not...