PASLAWSKI v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Zbigniew Pasławski, is a Polish national, who was born in 1955 and lives in Ustrzyki Dolne, Poland. He was represented before the Court by Mr Z. Cichoń, a lawyer practising in Cracow, Poland. The respondent Government were represented by their Agent, Mr K. Drzewicki. The facts of the case, as submitted by the parties, may be summarised as follows. On 28 February 1996 the applicant bought 3.71 hectares of land situated near the Bieszczadzki National Park in the Ustrzyki Dolne County. After consulting specialists in forestry, he decided that the nature of the land made it suitable for a commercial nursery. The applicant submitted that he had fenced the property with posts and planted 15,000 spruce trees on it. He intended to sell them as Christmas trees. The applicant used tree shelters made of woollen fabric and a chemical repellent to prevent damage caused by game. The Government submitted that the applicant had failed to “properly secure” his property from game and hunters. During winter 1996/97 about 80% of the trees were damaged by game. The applicant estimated his loss at PLN 47,800. He replaced destroyed trees but in spring 1997 game again damaged trees. The Government contested the applicant's estimate. Furthermore, the applicant submitted that on numerous occasions he met on his plantation Polish and foreign hunters accompanied by a forest warden (leśniczy). When the applicant asked the forest warden why they hunted on his private property he was told that his land had been leased to the local hunting club (Koło łowieckie). It followed that the hunters could take game on the applicant's land whether he objected to it or not, whereas the applicant himself had no right to hunt on his property. In addition, the forest warden stated that although he could see damage to the applicant's property caused by game, according to law nobody was responsible for it. Subsequently, the applicant complained to the Krosno Regional Office (Urząd Wojewódzki w Krośnie), the Krosno Regional Directorate of Sate Forests (Regionalna Dyrekcja Lasów Państwowych w Krośnie), the Ombudsman and the local hunting club which leased his property. In a letter of 1 April 1996 the Krosno Regional Office observed that the applicant's claim concerned damage caused to a nursery and informed him that according to Article 46 (1) of the Law of 13 October 1995 compensation could be obtained only for damage to harvested crops or crops under cultivation. Moreover, the applicant was advised to approach the local hunting club in order to start co-operation in protecting his property from damage. Finally, he was informed that under Article 14 of the Law of 28 September 1991 he could apply for a subsidy to reimburse the cost of planting new trees if his property was covered by the official zoning map. On 30 July 1997 the applicant received a letter from the Ombudsman which stated: “In reply to your letter (...) concerning damage to your nurseries caused over many years by game – for which you cannot obtain compensation – unfortunately I do not have good news for you. I should explain the following: 1) The question whether compensation should be paid is regulated by law (...). However, the currently binding law – as before – is very unfavourable to you and many other individuals. The presently binding regulations, i.e. the Nature Preservation Law of 16 October 1991 (...) and the Hunting Law of 13 October 1995 (...) allow only very limited liability for damage caused by game. According to those regulations, such a liability, i.e. an obligation to pay compensation, exists only in the following cases: (a) damage caused by bison, bears and beavers, or (b) if damage is caused to harvested crops and crops under cultivation – also by (...) boars, elks, deer, fallow deer and roe deer (...). However, damage caused by other species does not result in such liability. It follows that those who suffered damage [caused by such species] do not have legal grounds and possibilities to obtain compensation, as neither the State Treasury, i.e. organs of public administration, nor any other institution is obliged to pay compensation. 2) The Ombudsman has considered that such a legal situation (...) should be changed since it is unfair and detrimental to citizens. The Sejm and Senate are competent to introduce changes to legislation which would create liability for damage caused by game. (...) In 1995, when the Hunting Bill was being considered by the Sejm, the Ombudsman pointed out to the Speaker of the Sejm – not for the first time – that the legal regulation of that subject-matter should be changed (...). Unfortunately, the Sejm adopted the Hunting Bill without taking into account the Ombudsman's submissions and did not extend liability for damage to all kinds of damage caused by game but instead practically repeated old regulations. Therefore, the legal regulation of that subject-matter has not been changed. Even if in the future the Sejm changes (...) the regulations (...), it will not be possible to receive compensation for damage suffered before the change [of legislation] because new regulations will not apply retroactively to damage caused before the date on which new regulations enter into force. The legislation presently in force does not provide for the liability of either the State Treasury or any other institution for damage caused, inter alia, in crops other than agricultural and therefore there is no legal i.e. judicial avenue to claim effectively compensation precisely because there are no legal grounds for such a claim. (...)” Article 14, in so far as relevant, provides: (...) 3. The official zoning map (...) designs grounds to be afforested. (...) 5. The owners (...) of grounds can obtain subsidies from the State budget for full or partial reimbursement of the costs of afforesting grounds referred to in paragraph 3. The decision concerning the grant of subsidy to cover those costs is made by the mayor after receiving an application from an owner (...) and the opinion of the county council. “Game, for the nation weal, is the property of the State Treasury.” “Game taken on hunting grounds (obwód łowiecki) in compliance with the legal regulations belongs to the lessee or manager of the hunting grounds, and on the land not pooled into hunting grounds – to the State Treasury” “Hunting grounds consist of an area not smaller than three thousand hectares on which there exist conditions for hunting.” “The Governor [establishes the borders of] hunting grounds and changes the borders of hunting grounds within his province by way of an ordinance which is issued after receiving an opinion of the Regional Director of the State Forests Administration and the Polish Hunting Federation.” “Hunting grounds are leased to the local hunting clubs of the Polish Hunting Federation.” “1. The lessee shall settle the rent received between the forest administration and the counties. 2. The forest administration shall receive a part of the rent proportionate to the area of State-owned land [pooled in hunting grounds], whereas counties shall receive [a part of the rent proportionate to] the remaining area of the hunting grounds. (...)” “The Polish Hunting Federation is a union of physical and legal persons who actively participate in the preservation and development of game and act to preserve nature.” “1. Local hunting clubs are unions of physical persons and are units of the Polish Hunting Federation for the purposes of hunting. 2. Hunting clubs are legal persons liable for their obligations.” “The tasks of the Polish Hunting Federation include: 1. hunting management; 2. taking care of the development of hunting and co-operating with the State administration, local government, units of the State Forest Administration, national parks and other organisations in the preservation of nature, in the preservation and development of game and other wild animals, 3. taking care of the hunting heritage, (...)” “1. Hunting is allowed after the consent of the lessee or manager of the hunting grounds has been obtained. 2. Proof of membership of the Polish Hunting Federation certifying appropriate qualifications and a hunter's firearms licence (...) are required to hunt. 3. Hunter's qualifications shall be certified after an examination before a commission set up by the Polish Hunting Federation. (...)” “The lessee or manager of the hunting grounds shall compensate damage caused: 1. to harvested crops and crops under cultivation by boars, elks, deer, fallow deer and roe deer, 2. during the hunt.” “1. The owners (...) of agricultural and afforested grounds shall, as needed, co-operate with the lessees and managers of the hunting grounds in securing them against damage referred to in Article 46. 2. If there is a disagreement between the owner (...) of a ground and the lessees and managers of the hunting grounds, as to the amount of compensation for damage referred to in Article 46, the parties may request the (...) local council to mediate a settlement. ” “ The Minister of Environment, Natural Resources and Forestry in agreement with the Minister of Agriculture shall issue a resolution concerning detailed rules and procedures of damage assessment and payment of compensation for damage caused to crops under cultivation and harvested crops.” “The State Treasury shall be responsible for damage caused by game under permanent protection” According to the materials submitted by the applicant, in 1997 the Krosno Regional Directorate of State Forests charged foreign hunters DEM 3,300 for each taken medium-seized deer. The Directorate invested those funds in the preservation of forests. Article 79 (1) of the Constitution of 2 April 1997 provides, in so far as relevant, as follows: “Everybody whose constitutional freedoms and rights have been violated, shall have a right to (...) lodge a complaint with the Constitutional Court concerning the conformity with the Constitution of a law or any other regulation, which was a basis on which a court or an organ of public administration decided about his freedoms, rights or obligations provided by the Constitution.” Article 188 of the Constitution reads, in so far as relevant, as follows: “ The Constitutional Court shall adjudicate cases concerning: 1. the conformity of laws and international agreements with the Constitution, 2. the conformity of ratified international agreements (...), 3. the conformity of laws issued by the central organs of the state, with the Constitution, ratified international agreements and laws, 4. the conformity of the aims and activities of political parties with the Constitution, 5. the Constitutional complaint, referred to in Article 79 (1).” Article 190 of the Constitution provides, in so far as relevant, as follows: “1. Decisions of the Constitutional Court are binding and final. 2. Decisions of the Constitutional Court in cases referred to in Article 188 shall be published (...). 3. A decision of the Constitutional Court shall enter into force on a day on which it is published; however, the Constitutional Court may set a different time-limit for the overturning of [unconstitutional] legislation to take effect. Such a time-limit shall not exceed eighteen months in cases concerning a law, and twelve months in cases concerning other types of legislation. In respect of decisions resulting in financial outlays not provided by the budget law, a time-limit shall be set after the Constitutional Court acquaints itself with the opinion of the Council of Ministers. 4. A decision of the Constitutional Court declaring unconstitutional (...) a piece of legislation, according to which a case was decided (...) is a basis for re-opening the case. (...)” Article 21 of the Constitution provides: “1. Republic of Poland shall protect property and a right to inherit. 2. Expropriation is allowed only in the public interest and with just compensation.” Article 401¹ of the Code of Civil Procedure provides, in so far as relevant: “§1. A case may be reopened also when the Constitutional Court declared unconstitutional a legal act (..) on which a judgment was based. §2. In the circumstances described in § 1 an application for reopening shall be lodged within one month after the entry into force of the Constitutional Court's decision.”