Ukraine’s Fight to Ban Asbestos: Update
(Updated June 3, 2019; see end of article)
On June 11, 2018, the District Administrative Court of Kiev published its 12-page decision in the case brought by Ukraine’s Ministry of Health (MoH) earlier this year over the quashing by the Ministry of Justice (MoJ) and the State Regulatory Service (SRS) of 2017 MoH regulations ending the use of asbestos in Ukraine entitled: “On the safety and protection of workers against the harmful effects of asbestos and asbestos-containing materials and products.” More specifically, the MoH and MAMA-86 – a non-governmental organization which was a third party supporting the MoH in these proceedings – requested the Court:
- deem unlawful the activities of the SRS – namely its withdrawal of approval of the State Sanitary Norms and the Rules “On the safety and protection of workers against the harmful effects of asbestos and asbestos-containing materials and products”;
- nullify the MoJ’s order which deleted the MoH’s State Sanitary Norms and the Rules “On the safety and protection of workers against the harmful effects of asbestos and asbestos-containing materials and products” from the official publication, thereby preventing these regulations from entering in to force.
Arguments made during court sessions in January, April and May 2018 which vigorously documented the state-of-the-art regarding the human health hazard posed by exposures to chrysotile (white) asbestos were countered by aggressive denials by the defendants – supported by the Ukrainian Chrysotile Association and the plant “DniprovskaKhvylia” – which alleged that the prohibitions would adversely affect national economic interests.1
The ruling of the three-judge panel under presiding judge Irina Petrovna Vasilchenko which was signed on June 6, 2018 upheld the human rights of Ukrainians to live a life free from asbestos exposure, citing extracts from Ukraine’s Constitution, a judgment by the European Court of Human Rights, the Universal Declaration of Human Rights of 1948 and the Charter of Fundamental Rights of the European Union. The Court concluded that the MoJ’s order dated September 11, 2017 No. 2859/5 “On the cancellation of a decision on state registration of a legal act” was illegal and subject to cancellation. Within days, the Ministry of Justice appealed the Kiev court’s decision. If the decision stands, and there is every reason to believe it will, the MoH will undoubtedly take action to have the regulations “On the safety and protection of workers against the harmful effects of asbestos and asbestos-containing materials and products” reinstated. Commenting on this development, Ukrainian campaigner Olga Tsygulyova said:
“After the enormous pressure exerted by the asbestos-cement product manufacturers’ lobby on the state bodies, this is an indisputable victory by the Ministry of Health of Ukraine, MAMA-86 and their supporters. This victory inspires us to continue our struggle to achieve a total asbestos ban in Ukraine such as that which exists in other European countries.”
Of course, banning asbestos is just the first step on a long journey to freeing Ukraine from the asbestos scourge. Under a resolution of the Ukraine Government designed to implement “the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part,” and in order to comply with Council Directive 83/477/EEC, Council Directive 91/382/EEC and Directive 2003/18/EC, by October 31, 2021, Ukraine’s Ministry of Health, State Labor Service and Ministry of Social Policy are obliged to:
- create and maintain an asbestos register for recording cases of occupationally-caused asbestos-related illnesses including mesothelioma;
- introduce a mechanism for assessing risks associated with the effects of exposure to asbestos or asbestos-containing products;
- develop a legal mechanism for strengthening penalties for breaching regulations designed to protect workers from the asbestos hazard.
Considering that 2021 is just three years away and that the intransigence of asbestos vested interests shows no sign of abating, it is unclear whether Ukraine will be able to honor the commitments it has made. One thing, however, is certain: civil society will not accept lower asbestos protections for Ukrainian citizens than for other Europeans. Watch this space!
June 18, 2018
Update June 3, 2019:
Unfortunately, the 2017 verdict of the District Administrative Court of Kyiv (Kiev) was overturned on procedural technicalities by the Kyiv Appeal Administrative Court on August 7, 2018. This ruling was upheld by a verdict handed down by Ukraine’s Supreme Court (Court of Cassation) on March 29, 2019 as a result of which the national asbestos ban was vacated.”2 Commenting on this adverse development, a long-term supporter of Ukrainian efforts to safeguard citizens from the asbestos hazard said:
“In light of this temporary setback, Ukrainian campaigners working to free the country from the curse imposed on it for decades by asbestos profiteers are resolved to continue exploring alternative means to end toxic exposures. Our citizens, like those elsewhere in Europe, have the right to an asbestos-free life.”
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1 Kazan-Allen L. Ukraine Asbestos Ban: Round 3. May 2, 2018.
http://ibasecretariat.org/lka-ukraine-asbestos-ban-round-3.php
2 Unified State Registry of Court Decisions. March 29, 2019.
http://www.reyestr.court.gov.ua/Review/80805685
