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Table of contents

Current issue (PDF, 260 kB) | Newsletter Archive

1. LEGISLATION
   1. The Administrative Code – Das Grosse Problem
   2. Czech NGOs protected Act no. 114/1992 Sb., on protection of Nature and the Landscape from the wilful weakening
   3. Third National Forum for public participation in decision making in the public administration
   4. Law on the Building of Highways and High Speed Carriageways – John Locke would be surprised
   5. Amendment to the Law on Genetically Modified Organisms
   6. Amendments to the Law on Inland Shipping
2. CASES
   1. Spolana – the evidence is mounting
   2. High voltage wires behind the pulpit
   3. Photographic Exhibition "Farmer Rajter's Story – from Collectivization to Globalization", winner of the Czech Press Photo 2003 award
   4. Assistance for the Beskydčan association
   5. NEMAK – Or dog does not eat dog
   6. LG. Philips Displays
   7. Ridiculous, but economically unprofitable
   8. The Supreme Court decides on the Libický marsh case
3. DEVELOPMENT OF THE PUBLIC INTEREST LAW SECTOR
   1. Public Interest Law Conference 2004
   2. Public Interest Law joins the curriculum at the Law School at the University of Olomouc

After the Lower House, in its fateful meeting, decided to return both proposals for the Administrative Code – both the deputies and government – back to the committees, the debate adjourned with this pearl: the Ministry of the Interior acknowledged reasonableness of the objection regarding the too complicated and incomprehensible proposals (criticised not only by ELS and others including the Czech Republic's Association of Regions) and would attempt to improve the law.

The November wind took with it both the remaining leaves and also the hope that the Ministry can take steps towards transparency, simplicity and greater lucidity with the proposal. The Ministry of the Interior promoted only a part of those amendments which did not change the underlying concept and character of the code, the approval of which would lead to deconstructing existing procedural rights of the participants in administrative proceedings.

ELS expressed its opinion on the "old – new" version of the proposal in material distributed to members of the Constitutional law committee and other important subjects. For a detailed debate about the new version of proposal in the Lower House, we proposed a new wording of the amendatory proposal. In November, the government committee for human rights stated its opinion, on the basis of ELS's input, which accepted our position corresponding to the majority of the most important papers and amendments presented in criticism of the new administrative code.

Protection of the cultural heritage?
photo: Pavel Doucha

The Constitutional Law Committee met at the end of January 2004. Still, several days before its meeting, it seemed that on the basis on the Association of Regions' paper, the committee will decide for repeated restoration of the readjustments. For this reason, we had previously tried to meet with the association about a common statement, already with a view to the next step. However, The Committee recommended the proposal to be approved / pass on. Only minimum of our proposals (none of the most important) were accepted.

This time the Ministry of the Interior had prearranged and consolidated everything very carefully. Minister Gross opened the meeting, and said that the amendments had been very carefully corrected according to the memoranda of the regions and municipalities (not at all true) and had additionally "thoroughly and seriously engaged" the suggestions tabled by deputy, Member of Parliament Rujbrova (which were, as he said, consistent with the proposal of "some NGOs"), but he arrived at the conclusion that their incorporation was "difficult to the point of impossibility", and which "went against the sense of the changes, which the new administrative code introduces" and from that "this results from debates with regions and municipalities, which do not agree with these suggestions". The whole performance took place in the spirit of the previous disinformational tactics of the minister.

From this situation we arranged with other deputies to submit our 12 most important amendatory proposals, for which we had comprehensively argued. In the first half of February the rubicon was crossed when, at the second reading the governmental proposal of the law was rejected, failing to be passed by three votes.

Now we are negotiating for support of our amendments, which should be realistic, even if not the best alternative to the rejection of the proposal to the law as it stands.

Further Information: Pavel Černý / ELS Brno

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In the framework of the debated "Euro-amendments" Law for the Protection of Nature and the Landscape, which should lead to the introduction of the "NATURA 2000" network of European protected habitats to the Czech legal system, CSSD and ODS deputies presented two amendments to this bill, which are the last in a long series of row of attacks to the public participation in the environmental decision making and to possibly the most significant since 1992. The suggestion of deputy Skopal (CSSD) is oriented to cancel the possibility of civic associations participating in administrative procedures, which affects the public interest in protection of nature and landscape.

A range of NGOs, including ELS, actively protested against this attempt. In addition to preparing materials for deputies, substantiating the untruthfulness of marking civic associations as "chief culprits" of procrastination during administrative procedures, we have prepared a text declaring against the attempt to restrict public participation in decision making, which was supported by more than 70 mayors and members of the municipal councils from over the whole Czech Republic, more than 120 NGOs from the whole country, of both regional and local importance and a range of private citizens.

Finally the deputies did not approve the law and the Czech republic has yet to create criteria for establishment of the "NATURA 2000" system. The Minister of the Environment is, however, producing entirely new, simplified suggestions, which are currently being discussed.

Builiding site of the D8 highway - destruction of the valuable mountain forest / photo: Pavel Doucha

Further Information: Pavel Černý / ELS Brno

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A member of ELS, one of the members on a discussion panel in the bloc for the "The Aarhuss Convention – Attempts to Limit Participation in Administrative and other Proceedings" participated in "The Third National Forum for Public Participation in Public Administrative Decision Making", organised by the Senate Centre for Community Work. In its report were primarily relevant legislative suggestions, aimed at limiting the possibilities of public participation administrative proceedings regarding the environment, its relationship with the Aarhuss convention and its compatibility with the upcoming EU regulations.

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In December of 2003 the an overwhelming majority of the deputies present in the Chamber of Deputies voted in favour of the proposed law regarding the construction of Highways and High Speed Carriageways, which then advanced to its second reading. Almost all deputies present from the CSSD, KSCM and KDU-CSL voted in favour for the modifications to the bill.

Illustration photo / photo: Pavel Doucha

The proposers of the law expect that it will accelerate process of construction of the highway network in the CR. For this purpose, public participation will be limited and the purchase or expropriation of land accelerated for linear constructions, beyond the boundaries of the constitutionally guaranteed rights of property owners in the path of the planned communications. The suggested law about the specified highways declares that their construction represent the public interest and determines the specific paths (thus also avoiding expert valuation of the most economically and ecologically friendly route).

At the request of ELS, Prof. JUDr. Aleš Gerloch (lecturer at Law Faculty of the Charles University and a specialist in Constitutional law) prepared an expert opinion, which clearly states that the proposal is not in accord with our constitution and markedly interferes with the land-owner's legal rights in that it does not allow for consistent court protection. According to Prof. Gerloch: "… the law consequently infringes the interests protected by law to such a degree, that cannot balance the anticipated contribution of the new law… From this viewpoint the law represents an unjustifiable interference to the principle of division of power in the part which marks out the boundaries of individual constructions of highways and motorways."

In addition to this expert opinion, we worked together on our own proposal, which was sent to members of the government and actively lobbied by ELS.

A further considered variation, on how to reach this goal, is the Minister of Transport's prepared proposal on linear construction, which wants the government to suggest, as an alternative to the deputies' law on highways, a "common" regulation in support of transport structure constructions, which the government wishes to offer as an alternative to the deputies highway law.

Further Information: Pavel Doucha / ELS Tábor

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Restriction in the public participation and access to information was, on the contrary, approved by the vote for the amendments of the Law on GMOs. Deputies reduced the level of the right to information about the localities where GMOs are being grown, cancelled the possibilities of civic associations to participate in approval procedures for the growing of GMOs in free nature and cancelled representation of NGOs in the expert commissions of the Ministry of the environment, which is issuing the standpoints to the permitting. Likewise, the deputies did not produce convincing arguments about the discrepancies of the passed amendments with of the new EU directive about the rights to information about the environment. ELS attempted to use this argument in the, which has the right to return a new law to the lower house. The law was unfortunately passed at the end of January, and so number 78 / 2004 now decorates our collection of statues.

Further Information: Pavel Černý / ELS Brno

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The amendatory proposal of deputy from the CSSD and former minister of Transport and communication, Jaromír Schling, suggested that for navigational canals of international interest, the effectiveness of the law protecting nature and the landscape should be completely revoked, or, otherwise said, no law in nature protection in national parks, reserves and protected landscape areas. This means, that constructions would automatically have, in every case, right of way over protection of the environment. The amendment is another example of "Law on demand" which should insure the smooth permission of the Elbe canal, which will "concrefy" the last preserved section of the river in the Elbe sandstone protected area, and, in the long run, will aid in permitting the Danube – Oder – Elbe megaproject, which will destroy the Protected Nature Area Litovelské Pomoraví.

Local ecological organisations put forward by counter suggestions are, in the process ELS worked on a legal analysis of a contrasting suggestion with Czech and European laws, and partook in lobbying the senate. The senate returned the suggested law of the government with the compromising suggestion of fixed determined wording. The government accepted this compromise and approved the amendment as nominated by the senate.

Further Information: Pavel Doucha / ELS Tábor

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In case against the North Bohemian factory Spolana, we have been focusing on gathering evidence to prove that substances injurious to health have affected the surrounding environment as a consequence of the industrial damage caused by the floods in 2002. ELS asked for information the National veterinary administration, Regional health protection administration in Mělník, the Fund for the maintenance of national property, the Czech environmental inspectorate and The State veterinary institute in Prague. The Regional veterinary administration in Central Bohemia provided us with the first results of research undertaken in the area surrounding Spolana a.s. Interpretation of the interim results indicated contamination by mercury, PCB, DDT, HCH in food products (farm hens and eggs) significantly exceeding the valid EU norms. In the civil court the burden of proof rests with the plaintiff. It is therefore is necessary to gather as much evidence as possible, in order to enforce liability on one of the biggest polluters in the region.

Further Information: Anna Hrůzová / ELS Brno

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After a brief respite, the battle continues against the barbaric plans of the Jihomoravská energetika company (South Moravian Energy). It wants to build thirty-meter-high power pylons through the Provodov baroque pilgrimage site – the area of the Vizovické vrchy with the highest natural and esthetic value in the White Carpathians Protected Nature Area.

Thousands of the local people rose against the plan. The EIA procedure confirmed significant impact on the landscape character. Yet, in 2002 the Ministry of the Environment issued an affirmative standpoint containing only vague conditions to eliminate the project's damaging environmental impact. Consequently, the citizens turned to the Ombudsman's office, with assistance of ELS, to initiate a review of the decision. ELS developed the litigation strategy for the project's opponents. In the administrative proceedings citizens, municipalities and NGOs (all represented by ELS) will endeavour to enforce the environmentally friendly variant of the project – conducting of the electricity using cables or lower wooden pillars. The first success came when the management of The White Carpathians Protected Nature Area issued a disapproving statement and the Pozlovice municipality office has likewise subsequently filed a negative statement. In addition, the municipalities have been trying to influence the project by necessary modification of their land use plans.

Further Information: Pavel Černý / ELS Brno

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The unique exhibition by photographer Ibra Ibrahimovič, which describes the dramatic story of the farming family whose lives were changed by the investments of the NEMAK corporation, was officially exhibited at the end of the last year in the Czech Senate under the auspices of Madame Senator RNDr. Jitka Seitlová. The aim of the exhibition was bring the story of the Rajter family to the highest politicians, a family expelled from their Moravian farm by the former regime when they refused to participate in the JZD collective.

Wining photography
of the Czech Press Photo Award 2003
photo: Ibra Ibrahimovič

The Rajters perforce resettled in North Bohemia and began again. For 30 years they lived behind a chemical plant (today's Chemopetrol Litvínov) and were only able to farm on the devastated land between local strip mines. In spite of this, by 1993 they had somewhat prospered and were able to move to the last preserved agricultural area in the region. Three generations of the Rajter family farm on the current holding. Then, in 2000 the NEMAK multinational corporation, with the blessing of the Czech government, selected this area as an appropriate location for the construction of a heavy machinery plant. On the land where the Rajters once grew malt barley, a factory is now being built that will emit carcinogenic dioxins.

The exhibition was shown in Brno and will gradually travel throughout the Czech Republic.

Further Information: Pavel Franc and Jiří Nezhyba / ELS Brno
www.sedlakjan.cz

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In case of Celadna illegal golf course the building placement procedure had ended. Although the permit allowing the construction of the irrigation facility was not issued the facility had been already built.

As is usual, the resulting procedure for the demolition of the "black" building resulted in subsequent permission of the project, in spite of the fact that doubts remain concerning potential pollution of groundwater. We therefore challenged the decision by an appealing.

ELS is helping to the association in other cases – for instance – in the administrative proceedings on the construction of a new recreational chalet on the highest peak of Beskydy mountain – Lysá Hill, and in the conflict relating to the construction of the Frýdek-Místek bypass and its impact on the Malá Morávka river.

The most absurd case, however, is the Czech Environmental Inspectorate's charge against Beskydčan. Beskydčan is accused of planting 200 trees on the illegally felled forest near the ski slope in the I. zone of the Beskydy protected area. In so doing the activists "damaged the forest environment" and could be fined up to CZK 1 million. The aim of the planting was to protect of the forest from the undisciplined tourists, who illegally created a new path on the ski slope. After ELS intervention, the case was ended for the formal reasons, but the threat of the sanction still hangs in the air.

Further Information: Pavel Černý / ELS Brno

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After ELS, with Mr. Rajter and the "We want to live" civic association, successfully challenged the illegal building-placement decision, the Municipality Office in Most did not hesitate to issue the permitting decision again. On the very day when the first part of the factory was solemnly commissioned, the Municipality Office again issued the decision, and ELS again appealed.

The IPPC permission issuing process was simultaneously underway. The proceedings were held according to the stricter rules of EU law, which made NEMAK admit what they hitherto kept quiet – that there would be emission of dioxins and other environmentally harmful substances. It questioned the basis upon which the permit procedure for the NEMAK factory was given in the first phase.

Additionally, we filed suit against the Prime Minister Vladimír Špidla for his refusal to provide information about the conditions under which the government hired renowned attorney JUDr. Tomáš Sokol to represent the Havran municipality against the local citizens in the plea concerning interdiction of the local referenda. In late 2003, the constitutional court ordered a oral / verbal proceeding in this case. This in itself was arguably a considerable achievement, as the constitutional court proceeds with only one in every 50 constitutional complaints. Czech TV, PRIMA TV, and journalists from the main newspapers covered the hearing.

When a complaint is obviously unsubstantiated, the court is allowed to refuse the complaint without oral / verbal proceeding, so ELS expected a decision in the case, not a procedural decision.

Three generations of the Rajters family
photo: Ibra Ibrahimovič

The Constitutional court suddenly gave a very unexpected verdict: The court cannot replace the decision of the municipality, as it would inappropriately interfere with the right to self-government of local communities. The Constitutional court has done just this on occasions in the past, and in fact is expressly entitled by law to review and – when suitable – reverse or overrule unlawful decisions by public authorities, if they are unconstitutional and infringe on the constitutional rights of the citizens. This decision is therefore politically based. Ruling in favour of NEMAK were JUDr. Miroslav Výborný, former long-time Minister of Justice and Defence, on behalf of the Christian democrats, and JUDr. Pavel Hollander, whose extreme carefulness in decisionmaking on politically hot issues has been rewarded by – and he alone of the previous division of the court – the chair of constitutional judge for another ten years.

Further Information: Pavel Franc and Jiří Nezhyba / ELS Brno

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As a result of legal analysis of documents relating to the permit process for the LG. Philips Displays factory (which produces TV screens) in Hranice, a project supported by a state subsidy of 1,6 billion Czech crowns, ELS discovered the absence of an approved emergency plan and insurance in case of industrial accidents.

ELS therefore turned to the Olomouc Regional office and requested the operation be stopped and company fined. The Regional office refused, as the factory does not present danger for the surrounding environment according to a report which resulted from our complaint. The company need not take out insurance as long as the emergency plan is approved. However, the proposals of the plan were sent back four times, as it did not comply with the law.

The proceeding has been pending for two years, and the factory has subsequently begun to operate at full capacity.

Further Information: Pavel Franc and Jiří Nezhyba / ELS Brnoo

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Around the turn of the year Minister Ambrozek issued an exception to the Nature and Landscape protection Act. He permitted a project making the river Elbe (Labe) navigable to the town of Pardubice, which will destroy the Slavík islands, one of the few preserved blind arms of the river Elbe. Despite negative comments in the report tabled by the Agency for the protection of Nature and Landscape in the Czech Republic, a state organisation, and disapproving statements of the officials from the very Ministry of Environment, Minister Ambrozek sealed the fate of the 27 endangered species on the Slavík islands. Building of the new navigation channel and extensive related constructions will cause a considerable, and irreparable damage on the location, which has been proposed as an SCI (Site of Community Interest) under the European wide "NATURA 2000" system.

Canalisation of the Elbe is the subject of strong lobbying from several bodies in regional politics. The city of Prelouc, the city of Pardubice and the Pardubice Region have shares in the Prístav Pardubice a.s. (Pardubice Harbour) company, which was formed to provide a large transfer point at the end of the canal. Both municipalities and the Region are thus interested in pressing forward with the canalisation of the Elbe. The point is one of a conflict of interests, as these entities also have the legal obligation with respect to nature and habitat protection, and only their agreement allows construction on the Slavík islands.

Maculinea teleius is one of the species endangered by the navigation of the Elbe river
photo: RNDr. Bohumil Mocek

The Ministry of Transport is likewise involved in a conflict of interests. The supervising expert in the Ministry's water transport department is a member of the Pardubice Harbour Company's board of trustees. While it is easy to cry "conspiracy" it should be remembered that the Czech Republic currently ranks 54th in Transparency International's most recent corruption rating. The project is part of the broader plan to build a megalomaniacal 12,3 billion EUR Danube-Oder-Elbe (Dunaj-Odra-Labe) canal project in Central Europe, which will destroy dozens of other environmentally valuable areas. Officially, the Ministry opposes this project, but in permitting destruction of the Slavík islands the Ministry gave the green light to the permitting of the remainder of the plan. Therefore, this step is either example of naivety, or example of an enormously unprofitable political deal.

As the Czech Republic became a member of the EU on 1st May 2004, the case can stand before the European Commission. ELS is currently preparing a complaint to bring this environmentally devastating, uneconomic and unnecessary canal to a decision by the highest authority, in stead of narrow-minded vested interests.

Further Information: Pavel Doucha / ELS Tábor

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We obtained a partial victory at the Supreme Court in Brno, which definitely concluded the dispute between the Regional office of Central Bohemia and ELS concerning the illegal exclusion of the NGO "Freedom of Animals" from the proceedings on D11 (Praha – Hradec Králové) highway placement. Although we had recently succeeded twice in front of the Regional court in the proceeding, "responsible" officials did not abandon the hope that they would be able to seal the marsh in concrete without NGO activists bearing witness. The judgement of the Supreme Court has precedential character, as it made clear the extent of public participation in administrative decision-making.

Based on the Supreme Court decision, the proceeding will be reopened. It will naturally cause delays in the highway construction, which will be interpreted very easily – troublesome environmentalists are to blame. Nevertheless ELS will strive for better conditions for the migration of animal species in the reopened proceeding and will fight for the Flyover Bridge (instead of the surface corridor) to keep the marshes accessible for regular flooding by the Cidlina river, an essential factor in the marshes survival.

Provisional end of the D11 highway in the middle of the Libický luh marsh / photo: Pavel Doucha

Further Information: Pavel Doucha / ELS Tábor

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Under the patronage of Ombudsman JUDr. Otakar Motejl and Minister of Justice JUDr. Karel Čermak, the first Czech Public Interest Law Conference took place in Parkhotel Brno, on 29 – 30 April 2004. The specific topics of the conference were access to justice in the environment and other public interest matters and the non-effectiveness of the law in cases of police interference with human dignity.

Contributing speakers discussed topics such as international obligations of the Czech Republic relating to the Aarhus convention, Actio popularis (suits for protection of the public interest), the Czech Republic's obligations with respect to EC Legislation, performance of constitutional rights to a favourable environment for individuals and legal entities, etc.

In the environmental section were presentations by the Head of the DG Environment Governance Unit, Ludwig Kraemer, European Commission, prof. Piet Gilhuis, Tilburg University Faculty of Law, Department of Constitutional and Administrative Law, prof. in Environmental and Constitutional Law John Bonine, University of Oregon Law Department, Doc. JUDr. Vladimír Mikule, Law Faculty of Charles University, Department of Administrative Law, JUDr. Štěpánka Šišliková, Office of the Supreme State Prosecutor, JUDr. Jan Mareček, attorney, President of the Czech Society for Building Law, etc.

The Human rights block dealt with problems of legal and other guarantees in the handling of individuals in custody and international para-judicial Mechanisms, practice in investigation in the Czech Republic, and so on. Presenting these issues were JUDr. Bohumil Repík, former Judge at the European Court of Human Rights, Marie-Francoise Verdun, Judge, France, JUDr. František Vondruška, Office of the Supreme State Prosecutor, Representatives of the Interior Ministry Inspectorate and the Office of Protection of the Public Interest, among others.

Both blocks of the conference attempted to form practical solutions. After each contribution, there was about the same amount of time allowed for discussion. The legal software provider, ASPI Publishing company, will publish conference proceedings. The conference was officially organised by the Public Interest Lawyers Association (PILA), a nongovernmental umbrella organisation covering the joint activities of the lawyers of the Environmental Law Service and the League of Human Rights.

It was supported financially by The Dutch Foreign Ministry program for the transformation of Central and Eastern Europe, Open Society Fund of Prague, ASPI Publishing and the US Embassy of Prague.

Further Information: Vítězslav Dohnal / ELS Tábor

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According to plan, ELS and the Human Rights League helped establish a new subject for students at the law school in Olomouc University. Twenty five fourth – and fifth-year students enrolled in the one-semester course, where ELS and Human Rights League staff gave lectures on both options and forms of public participation in protection of the public interest in general and with Czech legal regulations in particular.

The course was opened by a lecture by Prof. Edwin Rekosh from the Public Interest Law Initiative Budapest. Students and lecturers had an opportunity to discuss the main issues in the fields of environmental protection, protection of human rights from police violence, protection of children, etc, in an interactive manner. A final essay based on knowledge acquired in the course was one of the conditions to get credit.

Questionnaires, gathered after the completion of the course, encouraged us to continue working with law students. The project will be followed up and in the near future, will evolve into the planned Law clinic.

Further Information: Vítězslav Dohnal / ELS Tábor

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