City of Moscow

March 11, 1996

 

The Constitutional Court of the Russian Federation, consisting of presiding judge M.V. Baglai, judges G.A. Gadzhiev, A.L. Kononov, T.G. Morshchakova, Yu.D. Rudkin, O.I. Tiunov, B.S. Ebzeyev and V.G. Yaroslavtsev,

with the participation of a representative of the Federation Council of the Federal Assembly of the Russian Federation – lawyer Yu.S. Kostanov, as well the following representatives invited to the session: from  the President of the Russian Federation – Mityukov, from the Ministry for the Social Defense of the Population of the Russian Federation – V.N. Solodun, from the Ministry of Finance of the Russian Federation – Yu.V. Kiselyov,

taking guidance from Article 125 (part four) of the Constitution of the Russian Federation, clause 3 of part one, parts two and three of Article 3, clause 3 of part two of Article 22, Article 36, part one of Article 96, Articles 97 and 99 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation,

has reviewed in an open session the case testing the constitutionality of clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River.

The impetus for the consideration of the case was the complaint from citizen V.S. Kornilov against the violation of his constitutional rights by clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River.

The basis for the consideration of the case was the discovered uncertainty in the question of whether or not the provision of part 3 of Article 1 of the aforementioned Law conforms to the Constitution of the Russian Federation.

Having heard the report of reporting judge V.G. Yaroslavtsev, the arguments of the representative of the Federation Council, testimony of a witness, and statements by the persons invited to the court session, and having studied the materials available, the Constitutional Court of the Russian Federation

established:

1. That the applicant – citizen Valery Sergeyevich Kornilov, born 1947 – lived from 1952 in the village of Brodokalmak of the Krasnoarmeysky District of the Chelyabinsk Oblast.  In 1957, in connection with the accident at the Mayak Production Association which caused the radioactive pollution of the locality, he was, along with other citizens who lived on Beregovaya street, evacuated (resettled) to a different, newly built street in the village.

On May 20, 1993 the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River was adopted.  In accordance with clause 3 of its Article 1, the effect of the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident at the Chernobyl Atomic Electric Power Plant as amended on June 18, 1992 was extended to citizens (including children) evacuated, as well as those departing voluntarily, from settled areas exposed to radioactive pollution as a result of the accident and the dumping of waste.

In connection with this V.S. Kornilov, who was located at the time of the accident in the zone of the radiation's effect, petitioned the Administration of the Chelyabinsk Oblast with a request to recognize him, as a person who had been exposed to the effects of radiation, as a victim and to issue him a document for the right to receive compensation and exemptions in accordance with the Law of the Russian Federation of May 20, 1993. His request was denied on the grounds that the effect of that law did not apply to him, since the Kornilov family was resettled within the borders of that populated area, and not outside of it.  The Miassky City People's Court, where V.S. Kornilov filed his statement of claim, satisfied his claim.  However the Chelyabinsk Oblast Court overruled the decision of the people's court and remanded that case back for new consideration.  In connection with V.S. Kornilov's petition to the Constitutional Court of the Russian Federation, proceedings on the case in the Miassky City People's Court have been suspended.

2. That the applicant asks that the entire clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 be declared unconstitutional.  However that clause in its entirety may not be the subject of consideration of the Constitutional Court of the Russian Federation, since in the case of the applicant only its provision concerning citizens evacuated (resettled), as well as those who voluntarily left populated areas exposed to radioactive pollution, was applied.

According to Article 97 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the complaint, to the extent that it concerns other provisions of clause 3 of Article 1 of the Law, is not admissible.

3.  That Article 42 of the Constitution of the Russian Federation enshrines the right of all to a favorable environment.  The state's obligation to take measures sufficient to protect nature and people during radiation accidents and catastrophes corresponds to that right.

The guarantees of social protection for citizens applicable to the right to a favorable environment and the protection of health, which are established by the state in accordance with the purposes set forth in Article 7 of the Constitution of the Russian Federation, may include a complex of exemptions and compensation going beyond the compensation of damage caused to health or property by environmental law violations.

Specifically, such measures are envisaged in the Law of the Russian Federation of May 20, 1993 which, as indicated in its preamble, is intended to defend the rights and lawful interests of citizens of the Russian Federation who were kin the zone of the effect of unfavorable factors which arose as a result of the accident in 1957 at the Mayak Production Association and dumping of radioactive waste into the Techa river, as well as persons who participated in the liquidation of their consequences.  From this wording it follows that the ground for classifying citizens as falling under the effect of the Law in question is their location in the zone of radioactive pollution which arose as a result of the accident and radioactive dumping into the Techa river.

Decree of the Council of Ministers – Government of the Russian Federation of October 8, 1993 On Measures to Implement the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River established a list of the populated areas exposed to radioactive pollution (which also includes village of Brodokalmak), residents of which were subject to evacuation (resettlement).  The very fact of full or partial evacuation (resettlement) bears witness to the fact that the residents of those populated areas were located in the zone of radioactive pollution.

The provision of clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 extends the effect of the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident at the Chernobyl Atomic Electric Power Station only to persons evacuated (resettled) from a populated area, i.e. excludes those who were resettled within those boundaries.  This does not conform to the purposes and sense of the contested Law, as indicated in its preamble.  This provision substantially narrows the group of persons who are eligible for protection as persons who suffered from the accident and dumping of radioactive waste into the Techa river, and denies those residing in the zone of the radioactive pollution and those resettled within the boundaries of the populated area the opportunity to receive lawful benefits and compensation, which places those citizens and the citizens who moved outside of the boundaries of the populated areas in unequal positions.

4. That, by following the literal sense of clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 the bodies applying the law linked citizens' receipt of exemptions and compensation exclusively with the formal establishment of the fact of evacuation (resettlement) from the populated areas indicated in Attachment No. 2 to the Decree of the Council of Ministers – Government of the Russian Federation of October 8, 1993.  Such an interpretation, contained in an instructive letter and a decree of the Administration of the Chelyabinsk Oblast, in actuality lead to a situation where a the possibility for a certain portion of the population which had suffered to defend its rights and lawful interests was restricted.  At the same time, human and civil rights and liberties in accordance with Article 18 of the Constitution of the Russian Federation are directly effective.  They must determine the sense, content and application of laws, the activity of legislative and executive power, local self-government and be supported by justice.

5.  That the provision of clause 2 of Article 1 of the Law of the Russian Federation of May 20, 1993 thus in its literal sense and in the sense given to it by law application practice in fact establishes unjustifiable and unfair differences between persons who suffered as a result of the accident and dumping of radioactive waste into the Techa river and were not moved from the populated areas, but only resettled within their boundaries, and those where were evacuated (resettled) outside of their boundaries.

That provision of clause 3 of Article 1 of the Law contravenes Article 19 (part 1) of the Constitution of the Russian Federation on the equality of all before the law and the court, as well as Article 42 of the Constitution of the Russian Federation on the right of all to a favorable environment, since it does not equally protect all persons who found themselves in the zone of the radioactive pollution.

On the basis of the foregoing and taking guidance from part one of Article 71, Articles 72, 74, 75 and 100 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the Constitutional Court of the Russian Federation

hereby rules:

1. That the provision of clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River, as one which excludes the extension of the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident at the Chernobyl Atomic Electric Power Station (as amended on June 18, 1992) to citizens evacuated (resettled) within the boundaries of populated areas, is declared not conforming to the Constitution of the Russian Federation, its Articles 19 (part 1) and 42.

That, according to part two of Article 100 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, the case of V.S. Kornilov, which was decided on the basis of the provision of clause 3 of Article 1 of the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River which was declared not conforming to the Constitution of the Russian Federation, is subject to reconsideration in accordance with the established procedure.

3. That according to part two of Article 87 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, this Ruling shall serve as grounds for the revocation in accordance with the established procedure of the provisions of normative acts in respect of any part based on the provision declared unconstitutional of clause 3 of Article 1 of the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River, or reproducing it or containing the same provision.  Such provisions of normative acts may not be applied by courts, other bodies or officials.

4. That it is incumbent upon the Federal Assembly of the Russian Federation to introduce amendments to the Law of the Russian Federation On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River in order to ensure the rights and lawful interests of citizens of the Russian Federation who found themselves in the zone of the effect of unfavorable factors which arose as a result of the accident at the Mayak Production Association and dumping of radioactive waste into the Techa River.

5. According to parts one and two of Article 79 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation this Ruling is final, is not subject to appeal, shall enter into force without delay after its promulgation and shall be effective directly.

6. According to Article 78 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation, this Ruling shall be published in Sobraniye zakonodatelstva Rossiiskoi Federatsii, Rossiiskaya gazeta, other official publications of bodies of state authority of the Russian Federation, and also in Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii.

Constitutional Court of the Russian Federation

No. 7-P
 

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SPECIAL OPINION

of judge of the Constitutional Court of the Russian Federation G.A. GADZHIEV on the case testing the constitutionality of clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River in connection with a complaint from citizen V.S. Kornilov

On the basis of part one of Article 76 of the Federal Constitutional Law On the Constitutional Court of the Russian Federation I set forth my special opinion on the ruling of the Constitutional Court of the Russian Federation of March 11, 1996.

1. Clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993 On the Social Protection of Citizens Exposed to the Effects of Radiation as a Result of the Accident in 1957 at the Mayak Production Association and the Dumping of Radioactive Waste in the Techa River does not violate constitutional rights to a favorable environment and to the compensation of damages caused to health or property by an environmental law violation (Article 42 of the Constitution of the Russian Federation).

The constitutional right of every person to a favorable environment is related to the obligation of the state to ensure observance of this right by way of implementing a system of legal, organizational-technical, scientific, educational and other measures.  The constitutional concept of "favorable environment" is elaborated through the criteria established in the Law of the RSFSR of December 19, 1991 On the Protection of the Environment in the form of a system of norms and limits.

The environment is favorable if its condition corresponds to the criteria established by environmental protection legislation.

The violation of the environmental right to a favorable environment gives rise to the responsibility and obligation to compensate damage caused by an environmental law violation.  The content of the constitutional right to compensation for damages caused by environmental law violation lies  in the authority of every person to demand that the state, in accordance with the established procedure, establish responsibility in the form of compensation of damage caused to health or property by environmental law violations.  This constitutional right may not be viewed as a variation of the right to compensation by the state of damages caused by unlawful actions (or omissions) of bodies of state authorities or their officials (Article 53 of the Constitution of the Russian Federation), since Article 42 of the Constitution of the Russian Federation establishes the responsibility of not only the state, but also private individuals.

The regulation of the compensation of the damages caused by the environmental law violation is implemented in civil legislation which is classified as under the sphere of the jurisdiction of the Russian Federation (clause "n" of Article 71 of the Constitution of the Russian Federation) and in legislation on the on the protection of the environment, which is classified as under the sphere of the joint competence of the Russian Federation and its constituent entities (Article 72, clause "j" of part 1, of Constitution of the Russian Federation).

The state may not be considered to have violated the right to a favorable environment and to the compensation of damages caused by an environmental law violation since neither the Civil Code of the Russian Federation (Article 1079), nor the Law of the RSFSR of December 19, 1991 On the Protection of the Environment, do not hinder the compensation of such damage.

The necessity of the adoption of separate federal laws on each environmental accident does not arise from Article 42 of the Constitution of the Russian Federation.

The Law of the Russian Federation of May 20, 1993 On the Social Protection of Citizens Exposed to Radiation as a Result of the Accident in 1957 at the Mayak Production Association and Dumping of Radioactive Waste to the Techa River does not establish the criteria of a favorable environment and does not envisage responsibility for the compensation of damage caused by an environmental law violation.  The compensation of damages to citizens who suffered from the accident at the Mayak Production Association, in accordance with the aforementioned Law, is carried out through a special procedure, without the necessity of proving the presence of damages caused by an environmental law violation.

The measures envisaged by this Law, in essence, are social protection measures which are under the sphere of joint jurisdiction of the Russian Federation and its constituent entities (Article 72, clause "g" of part 1, of the Constitution of the Russian Federation).

In establishing social protection measures, the state is bound by the requirements not of Article 42 of the Constitution of the Russian Federation, but rather its Article 7 (part 1), which establishes the principle of a social state.

By virtue of this, the provision of clause 3 of Article 1 of the Law of the Russian Federation of May 20, 1993, as one which excludes the extension of the Law of the Russian Federation On the Social Protection of Citizens Exposed to Radiation as a Result of the Accident at the Chernobyl Atomic Electric Power Station to citizens evacuated (resettled) within the bounds of populated areas, contravenes Article 19 (part 1) of the Constitution of the Russian Federation, but does not contravene its Article 42.
 

Unofficial translation by John Fowler.

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