Acts of the Constitutional Court
DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS
21 April 2014 № D-920/2014
21 April 2014 № D-920/2014
On the conformity of the Water Code of the Republic of Belarus
to the Constitution of the Republic of Belarus
The Constitutional Court of the Republic of Belarus comprising the Presiding Officer - Chairman of the Constitutional Court of the Republic of Belarus P.P. Miklashevich, Deputy Chairwoman O.G. Sergeeva, judges T.S. Boiko, T.V. Voronovich, S.Y. Danilyuk, V.P. Isotko, N.A. Karpovich, V.V. Podgrusha, L.M. Ryabtsev, A.G. Tikovenko, S.P. Chigrinov
on the basis of Article 116.1 of the Constitution of the Republic of Belarus, Article 22.3.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 98, 101.1 of the Law of the Republic of Belarus “On the Constitutional Proceedings”
in open court session in the exercise of obligatory preliminary review considered the constitutionality of the Water Code of the Republic of Belarus.
Having heard the reporting judge A.G. Tikovenko, having analyzed the provisions of the Constitution of the Republic of Belarus (hereinafter - the Constitution), the Water Code of the Republic of Belarus and other legislative acts of the Republic of Belarus, the Constitutional Court of the Republic of Belarus found the following:
The Water Code of the Republic of Belarus (hereinafter - the Code) was adopted by the House of Representatives of the National Assembly of the Republic of Belarus on April 2, 2014, approved by the Council of the Republic of the National Assembly of the Republic of Belarus on April 11, 2014 and submitted for signing to the President of the Republic of Belarus.
The Code regulates relations arising from the possession, use and disposal of waters and water objects and is aimed at the protection and rational (sustainable) use of water resources as well as safeguarding of rights and legitimate interests of water users.
While reviewing the constitutionality of the Code the Constitutional Court proceeds from the following.
1. According to the Constitution the mineral wealth, waters and forests are the exclusive property of the State (Article 13.6).
Under Article 46 of the Constitution everyone shall have the right to a conducive environment and to a compensation for the loss or damage caused by violation of this right; the State shall supervise the rational utilisation of natural resources to protect and improve living conditions, and to preserve and restore the environment.
The above-mentioned constitutional rules have been developed in the provisions of the Code, which establish the basic principles, objects and subjects of relations in the field of protection and use of waters, different standards of protection and use of waters (Articles 3, 4, 7, 20-24); specify the competence of the President of the Republic of Belarus, the Council of Ministers of the Republic of Belarus, the Ministry of Natural Resources and Environmental Protection of the Republic of Belarus, local councils of deputies, executive and administrative bodies in the field of use and protection of waters (Articles 10-13); introduce management plans of river basins (Article 15); define types and terms of water use (Articles 28-33); set out the rights and duties of water users (Articles 36, 37); determine objectives and procedures for the use of water objects (Articles 38-45), general requirements for the protection of waters (Articles 50, 51), responsibility for unauthorised use of waters as well as for violation of legislation on the protection and use of waters (Articles 60, 61).
Constitutional requirements for the exercise of state control over the rational use of natural resources for purposes of protection and restoration of the environment have been developed in several articles of the Code, which are intended at further strengthening of guarantees of the constitutional right of everyone to a conducive environment, creating necessary mechanisms for the implementation of Article 46 of the Constitution aiming to ensure the environmental safety, public health, compliance with legislation on the protection and use of waters (Articles 4, 6, 14, 17, 37). In particular, Article 14 of the Code sets forth provisions on the development of state, regional and sectoral programs, regional activities in the field of protection and use of waters for rational (sustainable) use of water resources, conservation and restoration of water objects. Water users are required to use water rationally, take measures to reduce water loss; comply with requirements for the protection and rational (sustainable) use of water resources provided by legislative acts including technical regulations and others (Article 37 of the Code).
Article 3 of the Code establishes the principle of basin management of river water resources as one of the basic principles for the protection and use of waters. In accordance with Article 15 of the Code this principle shall be implemented through the approval of management plans of river basins for the period from 5 to 10 years, which shall be elaborated taking into account the data of the state water cadastre, state subsoil cadastre, monitoring data of surface and ground waters as well as recommendations of the basin councils.
These principles also include the priority for the use of ground waters for drinking needs before using them otherwise, contained in the Article 3 of the Code. As provided by Article 39.2.1 of the Code the ground waters use shall be permitted for drinking needs, production of foodstuff food, medicines and veterinary drugs, feeding, watering of animals.
In the view of the Constitutional Court these provisions of the Code are aimed at the implementation of the constitutional requirement for rational use of natural resources.
Determination in Articles 52-54 of the Code of the minimum width of water protection zones and coastal strips for some surface water objects as well as of the procedure of economic and other activities in these areas is aimed at the favourable environment preservation and ensuring of ecological safety. The Article 6 of the Code establishes ecological state (status) classes of surface water objects (or parts thereof) subject to the inclusion to the state water cadastre and placement on the official site of the Ministry of Natural Resources and Environmental Protection. Ecological state (status) of surface water objects (or parts thereof) shall be classified as excellent, good, fair, poor and very poor. The use of the official website of the mentioned Ministry by individuals and associations gives them an opportunity to exercise the right to access to the environmental information in the field of protection and use of waters provided by Article 17 of the Code and serves as a guarantee of constitutional right to receive information on the state of the environment (Article 34.1 of the Constitution).
The Constitutional Court finds that the content of the mentioned rules of the Code is intended to improve subsequent legal regulation of social relations relating to the possession, use and disposal of waters and water objects, what confirms the orientation of the legal policy of the state − the exclusive proprietor of water resources − to the most complete and effective performance of its constitutional duty to control the rational use of natural resources in order to protect and restore the environment.
2. According to the Constitution the State shall grant equal rights to all to conduct economic and other activities, except for those prohibited by law, and guarantee equal protection and equal conditions for development of all forms of ownership (Article 13.2); guarantee to all equal opportunities for free utilisation of abilities and property for entrepreneurial and other types of economic activities which are not prohibited by law (Article 13.4); regulate economic activities in the interests of the individual and society, and ensure the direction and co-ordination of state and private economic activity for social purposes (Article 13.5).
These constitutional provisions have been developed in a number of articles of the Code determining the procedure of water use. Thus, they provide for terms of special water use, approval procedure for special water use, conditions for granting a right to separate water use of surface water objects (or parts thereof), conclusion of a lease agreement on surface water objects for fish farming (Articles 30-33). In particular, water objects may be accorded for use for a term from 1 to 25 years depending on the type of water use.
At the same time the right to water use can be limited or terminated in the interests of public benefit and security, protection of the environment, historical and cultural values, safeguarding of rights and legitimate interests of legal entities and individuals, including individual entrepreneurs by the President of the Republic of Belarus, Ministry of Natural Resources and Environmental Protection or its territorial bodies, other state bodies in cases and under procedure prescribed by legislative acts (Article 34.1 of the Code).
In particular, it is provided in the Article 34.2 of the Code that the right to separate water use of surface water objects (or parts thereof) for household water use, waterpower needs and needs of national defence, the right to special water use and the right to lease of surface water objects for fish farming shall be limited in the following cases: violation of conditions of water use; non-compliance with conditions established by special water use permit or complex environmental permit, by state act on the right to separate water use; failure to comply with requirements established by acts of legislation on the protection and use of waters, including technical normative legal acts; failure to comply with conditions established by lease agreements of surface water objects for fish farming.
The Constitutional Court notes the appropriateness of this approach in relation to the implementation of the right to water use, which is consistent with the Article 23.1 of the Constitution allowing the restriction of rights and liberties in the instances specified by law, in the interests of national security, public order, protection of the morals and health of the population as well as rights and freedoms of other persons, and which conforms to the principle of proportionality as the restrictive measures set out in the Code are proportionate to the constitutional aims pursued.
Based on the identified constitutional and legal meaning of the Code, the Constitutional Court holds that its legislative regulation is aimed at safeguarding the balance of interests between business entities or those who perform the activity relating to the exercise of the right to water use and interests of an individual and the society on the whole as well as at ensuring to everyone of the opportunity to exercise their constitutional right to a conducive environment.
Additionally the exhaustive list of grounds for limitation or termination of the right to water use established by the legislator creates conditions for economic and other activities, exclusion of personal discretion, potential display of subjectivity when issuing special water use permits, complex environmental permits, in case of limitation and termination of the right to water use.
3. Under the Constitution it shall be the duty of everyone to protect the environment (Article 55). The duty is, first of all, a moral (ethical) category. Being given in the constitutional legal form it obtains the quality of legal ought, acquires the legal meaning of a compulsory imperative of objective and subjective nature ensured by State in order to create appropriate conditions for the realisation of the constitutional right to a conducive environment. This constitutional provision serving as the compulsory legal imperative does not reveal the content of the duty to protect the environment as well as does not set forms and methods of its implementation.
According to the meaning of the Article 55 of the Constitution identified by the Constitutional Court the implementation of the duty of every person to protect the environment may be put into effect directly or indirectly, in various forms and various methods, including using of legal methods. With respect to ecological relations the duty, taking the dominant position as an ethical requirement (imperative), motivates a person to fulfil environmental rights aimed at the protection of nature and, in the meanwhile, ensuring, guaranteeing the implementation of the right of everyone to a conducive environment. Fixation of environmental rights by law presumes the corresponding actions of individuals aimed at the realization of these rights, what imparts to the ethical requirement the quality of compulsory legal imperative.
This provision has been developed and specified in the Article 17 of the Code, which enshrines rights of individuals and associations in the field of protection and use of waters, in particular, the right to initiate the conduct of public environmental review under the established procedure, the right to take part in activities for the protection and rational (sustainable) use of water resources, the right to participate in the work of basin councils. The Article 19 of the Code provides that basin councils shall be interdepartmental and inter-territorial advisory bodies. The composition of these councils includes representatives of public authorities, water users as well as associations and scientific organisations. These councils shall be created in order to elaborate recommendations on the protection and rational (sustainable) use of basin water resources of the following rivers: Dnieper, Western Dvina, Western Bug, Neman and Pripyat. Council decisions are of the recommendatory nature and shall be taken into account during the elaboration of management plans of river basins as well as programs in the field of protection and use of waters in the river basin area.
4. According to the Article 8.1 of the Constitution the Republic of Belarus shall recognise the supremacy of the generally recognised principles of international law and shall ensure the compliance of laws therewith. The Article 33.1 of the Law of the Republic of Belarus “On International Agreements of the Republic of Belarus” provides that international agreements shall be performed by the Republic of Belarus in good faith in accordance with international law.
A number of provisions of the Code (Article 6, 20-24, 47, 48, 52, etc.) are consistent with the approach enshrined in the Convention on the Protection and Use of Transboundary Watercourses and International Lakes of March 17, 1992 (entered into force for the Republic of Belarus on August 27, 2003) and the Protocol on Water and Health thereto.
Articles of the Code providing for the establishment of basin councils, introduction of the principle of basin management, etc. are harmonized with the legislation of the Russian Federation and the Republic of Kazakhstan − countries which as well as the Republic of Belarus are members of the Eurasian Economic Community and the Customs Union − and the legislation of the European Union determining certain standards in the field of protection and use of water resources that are employed as guidelines for improving the national legal regulation of respective relations.
The Code is adopted by the House of Representatives of the National Assembly of the Republic of Belarus within the competence in accordance with the Article 97.1.2 of the Constitution, approved by the Council of the Republic of the National Assembly of the Republic of Belarus in accordance with the Article 98.1.1 of the Constitution.
In view of the foregoing the Constitutional Court concludes that the Code is in conformity with the Constitution as to the content of its rules, form of the act and procedure of its adoption.
Guided by Articles 116.1, 116.7 of the Constitution of the Republic of Belarus, Article 24.2 of the Code of the Republic of Belarus on Judicial System and Status of Judges, Articles 98-105 of the Law of the Republic of Belarus “On the Constitutional Proceedings” the Constitutional Court of the Republic of Belarus
RULED:
1. To recognise the Water Code the Republic of Belarus conforming to the Constitution of the Republic of Belarus.
2. The present decision shall come into force from the date of its adoption.
3. To publish the present decision in accordance with the legislation.
Presiding Officer –
Petr P. Miklashevich,
Chairman
of the Constitutional Court
of the Republic of Belarus