Constitutional provisions and legislation are a necessary, but not sufficient precondition for the effective preservation of the right to a healthy environment, said the president of the Constitutional Court, Snežana Armenko, adding that the realization of that right cannot be imagined without the action of that court.
At the opening of the regional conference "Human Rights and the Environment in Southeast Europe" organized by the Council of Europe, she said that in Montenegro there is a gap between what is proclaimed by the Constitution and what is real, because the constitutional fact that everyone has the right to the environment does not fully correspond with legal determinations in that direction.
"Constitutional provisions and legislation are a necessary, but not sufficient, prerequisite for effective protection of the right to a healthy environment," said Armenko.
According to her, this is why it is necessary to have a protective mechanism that assesses the contents of key areas of human rights and freedoms, and the realization of the protection of the right to a healthy environment cannot be imagined without the action of the Constitutional Court.
As announced by the Constitutional Court, Armenko said that she is sure that today's conference and the results of the comprehensive analysis that will be presented will pave the way for a more active role of the Constitutional Court of Montenegro in that area.
"And recognizing the important protection mechanism that our institution has in ensuring the protection of the right to a healthy environment in accordance with constitutional and international standards," said Armenko.
She reminded that this year, Montenegro celebrates the 60th anniversary of the existence of the Constitutional Court and 20 years since it ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms.
"This is the moment not only to look back on the achieved results, but also to prepare for future challenges and opportunities, because they are equally important when we notice and take advantage of them, in order to build bridges between two key issues of the modern age: sustainable development and preservation of the environment," said Armenko.
According to her, today more than ever before, the topic of human rights and environmental protection requires full attention.
"It is our responsibility to establish a balance between sustainable development and environmental protection as such, while preserving human rights and natural resources for current and future generations," said Armenko.
She pointed out that the Parliamentary Assembly of the Council of Europe recognized the importance of the right to live in a healthy environment in 2003 and adopted Recommendation 1614, which states that "in light of changing living conditions and the growing importance of environmental issues, the European Convention on Human Rights can to include the right to a healthy environment as a basic human right."
As Armenko pointed out, the Parliamentary Assembly proposed that member states "recognize the human right to a healthy, decent and sustainable environment, which includes the obligation of states to protect the environment in national legislation, preferably at the constitutional level."
"Montenegro, in its normative framework, has been protecting the environment for years and was the first country in the world to officially declare itself an ecological state in 1991, introducing the term "dignity of nature", said Armenko.
She reminded that the Constitution of 1992 presented Montenegro as a democratic, social and ecological state.
"The principle of an ecological state has not been deviated from even in the currently valid Constitution of Montenegro from 2006, which in Article 23 guarantees that everyone has the right to a healthy environment, to timely and complete information about the state of the environment, to the possibility of influence when deciding on issues of importance for the environment and the legal protection of these rights," said Armenko.
She pointed out that the constitution maker incorporated fundamental values regarding environmental protection into the Constitution of Montenegro long before the Council of Europe recommended it, but also before Montenegro ratified the basic international document for environmental protection, the Convention on the Availability of Information, public participation in decision-making and the right to legal protection in environmental matters, known as the Aarhus Convention.
"The right to a healthy environment is a special legal discipline that is characterized by a unique concept of legal regulation, non-standard environmental protection procedures and unique legal entities, which in Montenegro has a complex internal structure and includes substantive and procedural norms that regulate its protection," she explained. Armenko.
She emphasized that by guaranteeing the right to a healthy environment as one of the human rights for everyone, Montenegro guaranteed more rights than the European Convention for the Protection of Human Rights and Freedoms.
As she clarified, the Convention does not only protect the right to the environment as such, but examines possible violations of other rights protected by the Convention that may be directly violated or threatened by various factors related to the environment.
"Taking into account the international legal acquis and environmental protection instruments, especially the requirements of the Aarhus Convention, Montenegro has also adopted an extensive legislative framework," said Armenko.
According to her, the Law on the Environment is the "lex specialis" for that area, which regulates the principles of environmental protection and sustainable development, instruments and measures for its protection and other issues of importance for the environment.
As she added, apart from that law, the protection of certain segments of the environment is regulated by special laws.
"Nevertheless, there is still a big gap between what is proclaimed by the Constitution and what is real, since the constitutional fact that everyone has the right to the environment does not fully correspond with the legal provisions in this direction," said Armenko.
According to her, the analysis of the normative framework, as well as the lack of judicial practice in the matter of environmental protection, opened up several important issues.
Primarily, as she said, the question of whether the right to a healthy environment, which is guaranteed as such by the Constitution of Montenegro, has been established in the Montenegrin legislative system, and in which procedures it is protected.
Armenko also pointed out that the question arises whether compensation for damage due to the violation of the right to the environment can be seen as a separate basis in relation to compensation for damage due to the violation of another right that is threatened by the destruction of a healthy environment, or whether it is the same type of damage that the scope is determined by the application of traditional standards of compensation in accordance with the rules of the law of obligations.
"All state bodies, courts, and ultimately the Constitutional Court of Montenegro in their previous practice had a conservative approach in interpreting this constitutional provision, not recognizing the right to a healthy environment as such, nor in correlation with other constitutional and convention rights, which is resulted in very scarce practice in this area," said Armenko.
As she added, in the Report of the European Union (EU) on Montenegro in the field of environmental protection for chapter 27, slower than expected progress was recognized and further harmonization of the national legislation with the EU acquis was recommended.
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