Constitutional Framework For The Protection Of Future Generations And The Environment In Slovakia

Constitutional Framework For The Protection Of Future Generations And The Environment In Slovakia Presented by: Dr. Maslen Date: 30 August 2024 Constitutional Protection Of Environment In The Slovak Republic - Following articles of the Constitution of the Slovak Republic • Art. 4  “(1) Mineral resources, caves, groundwater, natural healing resources and watercourses are owned by the Slovak Republic. The Slovak Republic protects and enhances these resources, gently and effectively uses mineral wealth and natural heritage for the benefit of its citizens and future generations.  (2) The transport of water taken from water bodies located in the territory of the Slovak Republic across the borders of the Slovak Republic by means of transport or pipelines is prohibited; the prohibition does not apply to water for personal consumption, drinking water packaged in consumer packaging in the territory of the Slovak Republic and natural mineral water packaged in consumer packaging in the territory of the Slovak Republic and to the provision of humanitarian aid and emergency assistance. Details of the conditions for the transport of water for personal consumption and water for the provision of humanitarian aid and emergency assistance shall be laid down by law.” • Art. 20 (3)  “Property is binding. It may not be abused to the detriment of the rights of others or contrary to the general interests protected by law. The exercise of property right must not harm human health, nature, cultural monuments and the environment to the extent required by law.” • Art. 43 (2)  “The right of access to cultural wealth is guaranteed under the conditions laid down by law.” • Art. 44  “(1) Everyone has the right to a favorable environment.  (2) Everyone has a duty to protect and enhance the environment and cultural heritage.  (3) No one may, beyond the law, endanger or damage the environment, natural resources and cultural monuments.  (5) Agricultural land and forest land as non-renewable natural resources enjoy special protection by the state and society.  (6) Details of the rights and obligations under paragraphs 1 to 5 shall be laid down by law.” • Art. 45  “Everyone has the right to timely and complete information about the state of the environment and the causes and consequences of that state.” - The above-mentioned provisions of the Constitution create the constitutional framework of environmental protection in the Slovak Republic. - This legislation created a space for adoption of a specific act on the protection of the environment in the Slovak Republic. - In the mentioned context the Slovak legislation contains the general Act protecting the environment designated the Act no.17/1992 Coll. on the environment. - The Act on Environment • Established the principles of environmental protection transposing the principles of international environmental law. (Declaration of Rio de Janeiro (1992)) • There are also specific separate laws on the protection of individual components of the environment • (waters, air, forests, nature, and landscape etc.). • is also important, because it established basic principles and rules on liability for environmental matters in civil law. • the Article 27 of the Act on environment establishes the liability for the breach of the environmental legislation. - The general legislation protecting the cultural monuments • is expressed within the Act. No 49/2002 Coll. on the protection of monument fund. - definition can be found in the Art. 2 of the Act on environment: • “everything that creates the natural conditions for the existence of organisms, including humans, and is a prerequisite for their further development. Its components are mainly air, water, rocks, soil, organisms.” - definition is more ecocentric Actors Of The Formation Of Constitutional Law And Constitutional Jurisdiction Related To The Protection Of Environment - Legislative sphere of the Slovak legal system. • The Parliament does not have a significant role in shaping environmental protection besides legislation. • Field of application of the institutes of parliamentary control of the public administration. - the Committee of the National Council of the Slovak Republic for Agriculture and the Environment. • draft laws, recommendations to the Council, monitoring how laws are enforced, cooperation with other authorities, agriculture, forestry and water management, geodesy, cartography and land register, rural development, environment. - Judicial sphere of the Slovak legal system. • the Constitutional court of the Slovak Republic. • Approx. 87 decisions directly connected with the Art. 44 of the Constitution (the right to a favorable environment) since the year 1993. - But it is noticeable, that the Constitutional Court of the Slovak Republic • - when deciding, resp. ruling on this Article - is rather cautious and reserved. Judicial sphere of the Slovak legal system. • issues connected with the legal standing of the legal persons as for the performance of the right to a favorable environment. • The court holds the position that this right belongs primarily to the natural persons. • So, it is almost legally impossible to file a constitutional complaint related to the right to a favorable environment for a legal person or for a municipality. • But the Administrative Judicial Code (Act no. 162/2015 Coll.) established the right of the legal persons representing the public the right to file the administrative judicial action connected with right to a favorable environment to the administrative courts. • Gateway for these types of legal persons to also file the constitutional complaints, if the judicial protection before the administrative courts fails • Necessary connection between the breach of the right to judicial protection (Art. 46 of the Constitution) and the right to favorable environment. • changes in the legislation are mostly connected with the case law of the CJ EU. • The Case of the Brown Bear decided by the CJ EU (C-240/09) • The Case of the Pezinok Landfill decided by the CJ EU (C-416/10)  The current president of the SR has been active in this case • related to the procedural environmental rights and to the application of the Aarhus Convention within the Slovak Legislation. • The recent case of CC no. I. ÚS 380/2019-83 showed the possibility for the public concerned to file a successful constitutional complaint. (brown bear protection) - Judicial sphere of the Slovak legal system (CC and waste legislation) • The case law of the CC points to the existence of a public interest in waste management and the implementation of obligations related to waste management. • The existence of waste legislation is linked with the need to reflect current trends that are characteristic of a globalized society in the 21st century. • - The idea of the need for a global concept of environmental ethics. Ombudsman (Art 151a of the Constitution) • 2016  a survey focused on the intents of the location, construction and operation of small water powerplants (environmental participation of the public; river Hron)  report on the right to water Basis Of Fundamental Rights - Right to a favorable environment • as a constitutional concept • closely connected with protection of life and health • but also, with private life (personality rights) • limit/context to property • strong link to public participation, right to information and judicial protection in the CC case law Protecting The Environment By Enshrining Rights Related To Political Freedoms - Right to fair trial • does not mention the protection of environment. • mainly the issues of legal standing of legal entities protecting the environment in the CC case law • influence of ACCC (Atomic powerplant Mochovce) and CJ EU (the Brown Bear protection and Pezinok Landfill) - - the right to participate in public affairs • dispute, whether it includes also the right to comment the draft law • since 2015 (direct legal provisions guaranteeing the public such right) EIA proceeding • since 2015 administrative proceeding legally connected with the right to a favorable environment - - High protection of natural resources in the Constitution • Art. 4-mineral resources, water • Art. 44 - forests, plants and animals, soil The constitution does not define the principle of sustainable development (only in the Act on environment) Financial Sustainability - Art. 55 and 55a of the Constitution of the Slovak Republic. • socially and ecologically oriented market economy • the Slovak Republic protects the long-term sustainability of its economy - Link to Art. 4 and to the Art. 44 (4), (5) - constitutional protection of natural resources - 2017 - special legislation on protection of agricultural land and forest land The Protection Of National Assets - Special Constitutional Act no. 493/2011 Coll. On the budgetary liability - The concept of the wealth of the Slovak Republic in its fiscal policy - The mentioned Constitutional Act contains a calculation of all factors that are taken into account in determining the long-term sustainability indicator. De Lege Ferenda - The concept of constitutional protection of water • - Right to information about the state of environment • - Too technical Environmental burdens, damage to the environment Hierarchy of waste management • Problems with waste disposal, low waste to energy approach, conflict between waste to energy and recycling