Revista
de la
Universidad
del Zulia
Fundada en 1947
por el Dr. Jesús Enrique Lossada
DEPÓSITO LEGAL ZU2020000153
ISSN 0041-8811
E-ISSN 2665-0428
Ciencias
Exactas,
Naturales
y de la Salud
Año 14 N° 40
Mayo - Agosto 2023
Tercera Época
Maracaibo-Venezuela
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Methods for the Protection of Environmental Rights and Interests
Through Legal Proceedings: Administrative Aspect and Criminal
Aspect
Yevhen Leheza
*
Volodymyr
Horbalinskiy **
Vasyl Berezniak
***
Vadym Khashev
****
Volodymyr Oleksenko
*****
ABSTRACT
The object of the investigation consists of the disclosure of procedural legislation, through the
implementation of effective mechanisms of legal incidence on procedural aspects, which
constitute the framework for the protection of the violated environmental rights and interests
of citizens or other subjects of environmental legal relationships. Main content. A certain
innovation may be the introduction of the institution of group lawsuits (massive, collective) in
Ukraine, which will simplify access to justice for citizens, it will increase its quality and, due to
the reduction of the burden on the courts, will accelerate the consideration of cases, including
those of an environmental nature. Methodology: The methodological basis of the research is the
dialectical method of scientific knowledge; Through the application of this method, the legal,
functional, organizational and procedural aspects of the protection of environmental rights and
interests in the courts were considered. conclusions. The article argues the need for new forms
of protection of the rights and interests of a significant number of people; this is absolutely
necessary in the context of the specificity of environmental disputes.
KEY WORDS: Administrative tribunals, criminal courts, environmental conservation,
environmental legislation, judiciary, law.
*Professor, Doctor of Science in law, Professor at the Department of Public And Private Law, University of Customs and
Finance, Ukraine. ORCID ID: https://orcid.org/0000-0001-9134-8499. Email: yevhenleheza@gmail.com
**Associate professor of the department of general legal disciplines, Law Faculty, Dnipropetrovsk State University
of Internal Affairs, Ukraine. ORCID: https://orcid.org/0000-0002-6203-6151. E-mail: Gorbalinskiy@gmail.com
***Senior Researcher, Doctor of Science in law, Head at the Department of Criminal Law and Criminology,
Dnipropetrovsk State University of Internal Affairs, Ukraine. ORCID ID: https://orcid.org/0000-0001-5690-4736.
Email: vasiliyberezniak@gmail.com
****Associate Professor, Candidate of Science in law, Associate Professor at the Department of Criminal Law and
Criminology, Dnipropetrovsk State University of Internal Affairs, Ukraine. ORCID ID: https://orcid.org/0000-
0002-2240-0713. Email: khvg7747@gmail.com
*****Volodymyr Oleksenko, senior lecturer of the department of operative and investigative activities of the
Dnipropetrovsk State University of Internal Affairs, Ukraine. ORCID: https://orcid.org/0000-0002-5996-7182. E-
mail: vg.oleksenko@gmail.com
Recibido: 16/12/2022 Aceptado: 09/02/2023
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Métodos para la protección de los Derechos e Intereses
Ambientales a través de Procesos Judiciales: Aspecto
Administrativo y Aspecto Penal
RESUMEN
El objeto de la investigación consiste en la divulgación de la legislación procesal, a través de
la implementación de mecanismos efectivos de incidencia jurídica sobre los aspectos
procesales, que constituyen el marco de protección de los derechos e intereses ambientales
vulnerados de los ciudadanos u otros sujetos de las relaciones jurídicas ambientales.
Contenido principal. Una cierta innovación puede ser la introducción de la institución de
demandas grupales (masivas, colectivas) en Ucrania, lo que simplificará el acceso a la justicia
para los ciudadanos, aumentará su calidad y, debido a la reducción de la carga de los
tribunales, acelerará la consideración de casos, incluidos los de carácter ambiental.
Metodología: La base metodológica de la investigación es el método dialéctico del
conocimiento científico; mediante la aplicación de este método se consideraron los aspectos
jurídicos, funcionales, organizativos y procesales de la protección de los derechos e intereses
ambientales en los tribunales. Conclusiones. El artículo argumenta la necesidad de nuevas
formas de protección de los derechos e intereses de un número significativo de personas; esto
es absolutamente necesario en el contexto de la especificidad de las disputas ambientales.
PALABRAS CLAVE: Tribunales administrativos, juzgados penales, conservación ambiental,
legislación ambiental, poder judicial, Derecho.
Introduction
The right to an environment safe for life and health as well as the right to
compensation for damage caused by violation of this right, the right to free access to
information about the state of the environment, quality of food products and household
items, as well as the right to disseminate such information have the status of constitutional
environmental rights. In case of violated rights and freedoms of a person and a citizen, the
Constitution of Ukraine established a possibility of direct appeal to the court, it is
determined that the jurisdiction of courts extends to any legal dispute (part 2 of Article 124
of the Constitution of Ukraine). At the same time, the following forms of protection of
violated environmental rights and interests are distinguished: administrative one, public one
and judicial one. The administrative method of protection consists in the activities of bodies
(officials) authorized to consider cases of administrative offenses that encroach on
ecologically safe state of the environment. While using methods provided by the legislation
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public associations also perform the functions concerning protection of the right to a safe
environment. In the opinion of Buha Volodymyr administrative and public methods of
protection have certain advantages over judicial ones, as they are simpler, more accessible
and more efficient (Buha et al., 2022). Most of the European Union countries (Great Britain,
the Netherlands, Denmark, etc.) also evaluate court (juridical) proceedings as a last resort,
and prefer active participation in development of governmental decisions at the initial stage
as well as administrative measures to protect environmental rights. This is often explained
by the lack of legal resources and an excessively long process of rule-making at the level of
the Union (Halaburda, et al., 2021).
The purpose of the research consists in disclosure of procedural legislation through
implementation of effective mechanisms of legal influence on procedural aspects forming the
framework for protection of violated environmental rights and interests of citizens or other
subjects of environmental legal relations.
1. Literature review
However, there are situations when going to court is a real opportunity to protect the
violated right to environmental safety. It is, for example, so when it comes to the absence of
specifically defined holders of subjective environmental rights, and the fact of causing
material or moral damage to an unspecified circle of persons is obvious, which gives grounds
to suggest impersonal ecological public interest in the respective case. This publication is
devoted to the problematic aspects concerning implementation of the right to appeal to the
court for protection of a violated ecological interest and the related subjective environmental
right - the right to a safe natural environment. Scientific attention to the issues of protection
of environmental rights and interests, including in court, is multifaceted, multidimensional
and periodic and it is urgent today as well.
Dynamic development of various spheres of social life requires a quick, accurate and
adequate response, including search and implementation of new effective mechanisms of
legal influence on certain processes. A certain innovation may be the introduction of the
institution of group (mass, collective, class-action) lawsuits in Ukraine, which will simplify
access to justice for citizens, increase its quality, and, due to reduced burden on courts it will
speed up the consideration of cases, including those of an environmental nature.
According to the procedural legislation of Ukraine, the right to appeal to the court for
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protection belongs to every person in case of violation, non-recognition or contestation of
his/her rights, freedoms or interests. The list of persons who have the right to apply to court
for protection of their rights, freedoms and interests is enshrined in Article 3 of the Civil Code
of Ukraine, based on the above mentioned article all persons who have the right to apply to
the court for protection can be conditionally divided into three groups: 1) persons who apply
to the court for protection of their rights, freedoms or interests; 2) persons and bodies
applying to the court for protection of rights, freedoms and interests of other persons; 3)
persons and bodies that apply to the court for protection of state and public interests
(Kobrusieva et al., 2021).
2. Materials and methods
This research is based on works by foreign and Ukrainian researchers concerning
disclosure of procedural legislation through implementation of effective mechanisms of legal
influence on procedural aspects forming the framework for protection of violated
environmental rights and interests of citizens or other subjects of environmental legal
relations.
With the help of the epistemological method, the role of the peculiarities of the legal
regulation of procedural legislation was clarified by implementing effective mechanisms of
legal influence on procedural aspects taken as the basis for protection of violated
environmental rights and interests of citizens or other subjects of environmental legal
relations, , thanks to the logical-semantic method the conceptual apparatus was deepened,
the essence of the concepts of procedural legislation was defined by implementing effective
mechanisms of legal influence on procedural aspects forming the framework for protection
of violated environmental rights and interests of citizens or other subjects of environmental
legal relations. By using the system-structural method, constituent elements of such a
mechanism of procedural legislation were investigated through implementation of effective
mechanisms of legal influence on procedural aspects forming the framework for protection
of violated environmental rights and interests of citizens or other subjects of environmental
legal relations. The purpose of the research consists in disclosure of procedural legislation
through implementation of effective mechanisms of legal influence on procedural aspects
forming the framework for protection of violated environmental rights and interests of
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citizens or other subjects of environmental legal relations.
3. Results and discussion
The guarantee for implementation of the block of environmental rights defined by the
so-called Aarhus Convention is represented as the right to access to justice on environmental
issues. An analysis of the legislation and provisions of the Aarhus Convention allows us to
distinguish the following forms of access to justice:
1) appeal of decisions, actions or inaction of the state authorities, local self-
government bodies, officials and officials;
2) a lawsuit form of protection (a lawsuit for compensation for damage caused to
the health and property of citizens as a result of a negative impact on the natural
environment; a lawsuit for the termination of environmentally hazardous activities (legal
protection in the form of an injunction).
In addition, in recent years, judicial practice has begun to be formed and this gives an
opportunity to represent interests of future generations (acting in the interests of others
without a power of attorney) (Kolinko et al., 2019).
In the scientific literature, protection of the right to a safe environment (which is a
basic environmental right with other environmental rights and forms of their direct
implementation being aimed at an efficient implementation of it) is defined as the activity of
competent state bodies, authorized persons and public organizations, aimed at stopping
violations, recognition and restoration of this right, as well as at eliminating obstacles in its
implementation by means of applying legal liability in appropriate cases (Leheza et al., 2019).
Specificity of the subjective right to environmental safety is that its content includes the right
to protection, and the basis of this right consists in the interest of ecological well-being of
everyone in particular and of all citizens in general (Nalyvaiko et al., 2018).
In practice, there are many problems that prevent legal protection of environmental
rights. A striking example is Part 3 of Article 50 of the Law of Ukraine “On Environmental
Protection”; it stipulates that activities of individuals and legal entities that cause damage to
the natural environment can be stopped by a court decision. A prerequisite for the
application of this rule is an ongoing environmental offense that is subject to termination.
However, such a norm is imperfect, as it only provides for a possibility to terminate activities
if their results have already occurred and are obvious (Leheza, 2022). Environmental rights
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and interests are difficult to restore (Nalyvaiko et al., 2022). Taking into account the fact that
the rules on environmental responsibility are intended to perform primarily a preventive and,
of course, a compensatory and restorative function act as a way to protect property and non-
property rights and legitimate environmental needs and interests of citizens one should agree
with the opinion of Leheza Yevhen and Pisotska Karina regarding the need to supplement
the specified norm with the provision that activities that threaten to violate environmental
rights of citizens (i.e. they are actually potentially dangerous) can be stopped by a court
decision (Leheza et al., 2022).
Article 3 of the Civil Procedure Code of Ukraine has established the rule of a person’s
interest in initiating a civil case in court. When defining the scope of persons who can apply
to the court for protection of environmental rights and interests, the Aarhus Convention
contains a certain innovation not only for Ukrainian legislation, but also for the national
legislation of most countries, since it gives a broad interpretation of the “interested public”,
which has the right to appeal to the court (p.2 Art.5) (Matviichuk et al., 2022). “Interested
public” has the following meanings: 1) the public, which is or may be affected by the decision-
making process, on issues related to the environment; 2) the public, which has an interest in
this process. At the same time, clarification is given: “For the purposes of this definition, non-
governmental organizations that contribute to protection of the environment are considered
to have an interest.” The legal basis for applying to court without proving legal (direct)
interest is also presented in clause “ж” of Article 21 of the Law of Ukraine “On Environmental
Protection”. According to this clause public environmental associations have the right to file
lawsuits to the court for compensation of damage caused by violation of legislation on the
protection of the natural environment, including damage to health of citizens and property
of public associations (Matviichuk et al., 2022). Ukrainian practice of protection performed
by environmental protection public organizations has considerable positive experience.
Among public human rights environmental organizations, the greatest successes in the
protection of human environmental rights have been achieved by “EcoPravo-Kyiv”,
“EkoPravo-Kharkiv”, “EcoPravo-Lviv” (since 2005 EPL - “Environment People Law”, Lviv),
the Kharkiv Human Rights Protection Group, etc. (Leheza et al., 2020).
Environmental damage is damage to the surrounding natural environment, which is
formed by natural resources and the relationships between them, i.e. an environment where
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objects of private and public property, as well as objects that do not belong to anyone, are
considered in their inseparable totality (Tylchyk et al., 2022). Hence, the right to safety and
quality of these objects has a pronounced public meaning. Public principles of this right are
manifested, first of all, in the characteristics of its object, which is represented by the
environment as a special material good for public use, which is not directly related to the
personality of the right holder and which does not serve the purpose of individualizing the
personality (Pryimachenko et al., 2018). The unique essence of the right to a favorable
environment creates a situation where protection of the subjective right to a favorable
environment is satisfied not only by the interest of one person who applied for protection,
but also by protection of the public environmental interest - environmental protection
(Villasmil-Espinoza et al., 2022). In the context of the above, it seems necessary to use such
an important means of protecting the environmental rights of large groups of citizens as the
possibility of filing group (collective, mass) lawsuits (Lata et al., 2022).. This institute is not
reflected in the currently active procedural codes as an independent procedural institution.
However, in accordance with Part 2 of Article 5 of the Civil Procedure Code of Ukraine, in
the event that the law or contract does not determine an effective way of protecting violated,
unrecognized or disputed rights, freedoms or interests of the person who appealed to the
court, the court, in accordance with the requirements set out in the lawsuit of this person
can determine by its decision such a method of protection that does not contradict the law
(Matviichuk et al., 2022).
A group lawsuit allows one or several members of this group to protect the interests
of a large group of people without special authorization from people who are a part of the
group although its personal composition may be unknown at the time of filing the lawsuit.
The following features of a lawsuit for protection of an indefinite scope of persons are
distinguished (they reflect specificity of this scope of people):
- large number or uncertainty of personal composition of the group on the side of the
plaintiff, which does not allow, as a rule, to involve all the victims as co-plaintiffs;
- identity of claims of all persons whose interests are protected by a collective lawsuit;
- sameness of factual and legal grounds of lawsuit claims;
- availability of a general method of legal protection (for example, prohibition of
specific actions by the defendant, or, on the contrary, obliging the defendant to a certain
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option of actions);
- obtaining a general positive result by the group members in the event of court’s
satisfaction of the class-action lawsuit (Leheza et al., 2022).
The procedure for resolving cases regarding protection of rights and interests of an
unspecified group (scope) of persons must be enshrined in legislation by introducing the
relevant procedural regulations in the CPC of Ukraine.
One of the factors that ensure an efficient implementation of the right to
environmental protection in the USA is presented as public control over compliance with
environmental legislation, which is manifested in the institution of “citizen lawsuits”. The
peculiarity of this legal institution within the framework of the US environmental law and
the US legal system is that it acts as a means that ensures compliance with legislation in the
sphere of environmental protection. With its help, the range of entities that monitor
compliance with environmental legislation has been expanded. The essence of “citizen
lawsuits” institution is that any subject can file a lawsuit against any body or department,
including the United States, for non-compliance with the norms of environmental legislation.
Defendants may also include direct subjects of nature management. That is, any person who
has become aware of any facts of violation of environmental legislation has the right to apply
measures leading to liquidation of such a violation, including filing lawsuits to the court. In
case of a successful resolution of the case, the plaintiff within the framework of the “citizen
lawsuits” institution can receive (according to the court’s decision) a payment corresponding
to the attorney’s fee from the state treasury (Matviichuk et al., 2022). Therefore, the
following proposal is essential
It is advisable to establish the institution of “citizen lawsuits” in Ukrainian legislation.
This would make it much easier for citizens to address the court, and it would relieve them
of the need to prove legal interest, violation of their right to a safe environment, and would
contribute to strengthening public control over compliance with environmental legislation
(Matviichuk et al., 2022).
A vivid example of judicial protection of the right to a safe environment of a large
group of people is the decision of the Court of Appeal of the Kyiv region dated 19 May, 2017
in the case of compensation for moral damage in the lawsuits against defendants from
“Pobutrembudmateriali” Limited Liability Company, filed by “BRSM - Nafta” Limited
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Liability Company. The matter is about compensation for moral damage caused by a fire at
the oil depot that occurred in the summer of 2015. In support of the claims, the plaintiffs
noted that on 08 June, 2015, a fire broke out at the oil depot of “Pobutrembudmateriali” LLC,
and it lasted for more than 10 days. The result of the fire was damage to the natural
environment with created danger to life and health of people. The plaintiffs, as residents of
the specified region, suffered moral damage in the form of a number of psycho-traumatic
factors related to health damage, destruction of plaintiffs’ property (namely, the vegetables
that the plaintiffs grew, consumed and partially sold for receiving a certain income). The
plaintiffs asked to collect moral damages in the amount of UAH 263,088 from the defendants.
The appeal was partially satisfied (Bezpalova et al., 2021). This decision is notable in terms
of the detailed and comprehensive approach of the appellate court to the analysis of all factual
circumstances and those of legal significance in the case, realizing the territory of the damage,
which creates presence of non-personalized public interest in the case. Despite the specific
procedural participation of persons on the side of the plaintiff in each specific case, in general,
disputed relations may indicate protection of rights of an undefined scope of persons (Leheza
et al., 2018).
Conclusions
So, speaking about the introduction of a mass lawsuit into domestic legislation,
Nataliya Kuznetsova noted that the best option would be to supplement the Civil Procedure
Code of Ukraine with a separate chapter “Class-action lawsuits”. However, the prospect of
introducing such lawsuits exists not only in the sphere of private legal relations, but also in
the public sphere (administrative lawsuits), when challenged are adopted acts of state
authorities and local self-government bodies that cause damage to an unlimited number of
people.
Taking into account the scientific investigations of class-action (mass) lawsuits, as
well as individual examples of judicial practice, we can conclude about the admissibility and
even the necessity of implementing such a method of protecting violated environmental
rights and interests of individuals as a Class-action lawsuit. This will contribute to the
efficient consideration of court cases, relieve the courts and reduce costs, and most
importantly this will allow to objectively resolve disputes (even if it is not always possible to
establish an individually violated right) in view of the importance of the specific case for the
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society, that is, based on the presence of public interest in the case, the situation will be
decided in favor of an indefinite scope of persons - all in general and everyone in particular.
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