PROBLEMS OF PROTECTION OF
CITIZENS RIGHTS in the REPUBLIC OF KAZAKHSTAN, on a healthy environment
Mukasheva NK
PhD Kazakh Humanitarian Law
University of Innovations
The preamble to the Law of the
Republic of Kazakhstan "About social protection of citizens affected by
the nuclear explosions at the Semipalatinsk nuclear test site" from
18.12.1992, on the entire territory of the Semipalatinsk test site and the
surrounding area of Pavlodar, East Kazakhstan and Karaganda
regions is considered an ecological disaster zone. In accordance with paragraph
2 of Art. 173 of the Environmental Code of Kazakhstan (RK) ecological disaster
is the environmental situation that occurred at the site area, where as a
result of economic and other activities or natural processes have been profound
irreversible environmental changes that result in a significant deterioration
in the health of the population, the destruction of natural ecosystems ,
degradation of plant and animal life.
According to the organizations
they conduct bombings outside the landfill out radioactive clouds over 55 air
and ground explosions, gas fraction 69 underground explosions. These 124
explosions caused radiation load on the environment and the contamination of
the territory of Kazakhstan, an area of approximately - 304 000
km2 with a population of 1.7 million. In 711 villages effective dose exceeded
the annual rate of 0.1 rem. The maximum values of the dose during
test period, reaching 448 rem villagers
of Dolon received . [1]
The citizen's right to a
healthy environment for the first time called for in the Constitution in 1993
According to the Constitution in 1995 to the state defined by the environment
that is favourable to human life and health, which is a step back to ensure the
constitutional rights of citizens to a healthy environment.
Despite the legislative
embodiment of fundamental human rights, the rights of the citizens living in
the areas of ecological disaster to life, to health, to a healthy environment
are initially violated. In this connection, there is an acute problem of
compensation for damages by the state caused to life and health, social
protection, and rehabilitation of people living in environmentally
disadvantaged areas.
During the National Nuclear
Center radioecological aquatic Semipalatinsk test site was found to be
contaminated by radioactive products Shagan River nuclear explosions. The main
radioactive contaminant is tritium. The maximum values of tritium
in the river are set at 4.7 km from the "atomic" lakes and more than
50 times the acceptable level for drinking water. [2]
This situation is
complicated by the fact that near p. Shagan housing people who are active in
economic activities. Moreover, the Shagan River flows into the Irtysh river, which is the source of
water for many communities.
The main problem of the
implementation of protection of the right to a healthy environment of citizens
living in the areas of ecological disaster is the lack of legal regulation of
resettlement of the population living in areas where, in fact, and today there
is an increased background radiation.
Legal regulation of ecological
disaster in Section 6 of the Environmental Code of Kazakhstan. It consists of
two chapters that define the concept and the announcement of a separate
territories zones of ecological emergency and environmental disaster, and the
peculiarities of legal regulation in the areas of environmental emergency and
environmental disaster. However, these rules chapters are insufficient for the regulation of the corresponding social
relations. As these provisions of articles regulating primarily the process of
giving the desired status of the territory, leaving essentially an open question
of how to exit from the state of ecological trouble.
It is not defined and the
issue of the possibility of legal reasoning moving citizens from the territory
of the former Semipalatinsk nuclear test site. Thus, according to the PP. 3)
Art. 176 Environmental Code, in case of finding in a particular area of
legal regimes environmental emergency and environmental disaster
may introduce the following measures - "resettlement of people from places
that are dangerous for them to live, ensuring their premises for a permanent or
temporary residence." However, this rule does not find the actual
application, since not available in the current laws of RK. The interpretation
of this article in part "to take corresponding measures" means that
these measures may not be introduced, and this allows us once again to escape
responsibility without imposing corresponding obligations on the state.
If a citizen decides to move
from the said territory, being fear for the health of their children, in the
absence of own funds he actually can not do it, because by law the issue is not
resolved, the budget of the country, such costs are not provided.
Thus, in order to realize the
right to a healthy environment, it is necessary to legalize the right of
citizens living in the areas of ecological disaster for resettlement.
Relevant is the problem of
maintaining social benefits, if the citizen is leaving out of the territory
adjacent to the nuclear test site, even within the country. Law "About
social protection of citizens affected by the nuclear tests at the
Semipalatinsk nuclear test site," provides that citizens who had left
these areas and cities to another place of residence, subject to this Act and
who reside in the territory of Kazakhstan, enjoy the benefits provided by this
law (Article 1). However, in Art. 13 of the Act means that the right to
additional pay and additional paid leave is the population living in the
territories referred to in Articles 5-9. Accordingly, if a citizen has left
these areas, he is deprived of social benefits provided by law, namely, the
additional pay and additional paid holidays.
Thus, it is necessary to
eliminate the legislative conflicts, eliminating restrictions on social
benefits by the fact of residence.
Amount of social payments to
the adoption of the Act also had an unjustified change in the direction of a
significant decrease. So, initially of Art. 12 of the Act stipulated that
monthly units is the minimum salary applicable at the date of issue of
compensation. Law "On Amendments to the Law of the Republic of
Kazakhstan" On social protection of citizens affected by the nuclear tests
at the Semipalatinsk nuclear test site "from 07.04.1999, the, from 16.11
in 1999 in Art. 12 and in paragraphs. 1 hour second century. 13 changes were made:
the words "minimum wage" are replaced by "monthly index."
In the normative decisions of the Supreme Court of 21.06.2001 ¹ 5 "On the
application of Art. 13 of the Law of the Republic of Kazakhstan dated
18.12.1992, "About social protection of citizens affected by the nuclear
tests at the Semipalatinsk nuclear test site," "indicated that from 1996, the use of" minimum wage
"in the law was suspended before making changes in the legislation, and in
1999 it was changed to "monthly index," courts in considering civil
lawsuits to recover additional payments from 1996 should be based on monthly
index. The same law was expelled paragraph: "In addition, these citizens
are entitled to an annual medical allowance for the disabled, whose disability
was the result of nuclear tests in the amount of 100 percent of the cost of
tickets and travel expenses during the course of treatment or payment of ten
times the amount of wages. '
Subsequently an additional payment of scholarships by
zones are canceled. There were other changes to the Law about the worse
situation of citizens to social security.
The big problem are questions
remained of full redress to citizens living in the areas of ecological
disaster. In accordance with Art. Environmental Code 177 persons were victims
of an environmental emergency or environmental disaster, have the right to
compensation for harm, as well as social security in accordance with the
legislative acts of the Republic of Kazakhstan. However, according to paragraph
2 of the Law of Kazakhstan "On social protection of citizens affected by
nuclear explosions at the Semipalatinsk nuclear test site" categories of
people listed in Article 10 of this Act, have the right to compensation for
damage caused to their health and property to the extent required by Articles
12, 13, 14 and 15 of this Act. In fact, legislation has restricted citizens
affected by the nuclear explosions at the Semipalatinsk nuclear test site in
the full damages.
The current legislation of the
Republic of Kazakhstan, contains a coherent and effective system of rules to
ensure the protection of the rights of citizens to a healthy environment,
particularly evident in respect of the citizens living in the areas of
ecological disaster.
Literature
1. Turlykhanov KB State and
environmental problems of the East Kazakhstan region, with the consequences of
the Semipalatinsk nuclear test site. / Journal of NNC. Geophysics and
non-proliferation issues. Radioecology. Environmental protection. Issue 3.s.
95.
2. AO Aidarkhanov, SN
Lukashenko, SB Subbotin, VI Edomin, SV Genova, A. Toporov, NV Larionov, E.
Pestles. River ecosystem health. Sagan and basic mechanisms of its formation.
Topical issues Radioecology Kazakhstan. Topical issues Radioecology Kazakhstan.
Issue 2. Proceedings of the Institute of Radiation Safety and Ecology in
2007-2009. / Under arms. Lukashenko SN, 2010.-p.9