FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38678/97 by Zbigniew PASŁAWSKI against Poland

The European Court of Human Rights (Fourth Section) , sitting on 22 March 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 August 1997 and registered on 20 November 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1955. He is a farmer and lives in Ustrzyki Dolne, Poland.

The facts of the case, as submitted by the applicant , 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 fenced the property 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.

During winter 1996/97 about 80% of the trees were damaged by game. The applicant estimates his loss at PLN 47,800. He replaced destroyed trees but in spring 1997 game again damaged trees.

Furthermore, the applicant submits that on numerous occasions he met on his property 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 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 Seym [1] 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 Seym, the Ombudsman pointed out to the Speaker of the Seym – not for the first time – that the legal regulation of that subject-matter should be changed (...). Unfortunately, the Seym 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 Seym 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. (...)”

B. Relevant domestic law and practice

1. The Forestry Law of 28 September 1991

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.”

Article 28

“The owner of a forest which does not belong to the State Treasury can prohibit trespassing by putting up an appropriate sign.”

2. The Hunting Law of 13 October 1995

Article 2

“Game, for the nation weal, is the property of the State Treasury.”

Article 15

“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”

Article 23(1)

“Hunting grounds consist of an area not smaller than three thousand hectares on which there exist conditions for hunting.”

Article 27(1)

“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.”

Article 28(1)

“Hunting grounds are leased to the local hunting clubs of the Polish Hunting Federation.”

Article 31

“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.

(...)”

Article 32(1)

“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.”

Article 33

“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.”

Article 34

“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,

(...)”

Article 42

“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.

(...)”

Article 43(1)

“Foreigners who are not members of the Polish Hunting Federation may hunt after buying the hunt from the licensed enterprises (...) or after obtaining a permit from the Minister of Environment, Natural Resources and Forestry.”

Article 46

“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,

3. Fees charged for taking game

According to the materials submitted by the applicant, in 1997 the Krosno Regional Directorate of State Forests charged foreign hunters DM 3,300 for each taken medium-seized deer. The Directorate invested those funds in the preservation of forests.

COMPLAINTS

1. The applicant submits that the Polish Government discriminate against him by keeping in place unfair legislation unchanged since the communist era. In that context he raises the following complaints:

(a) game living on his property belongs to the State but when it causes damage to the fruits of his labour the State is not liable; what is more, the State increases the number of game because it – together with local hunting clubs – derives profits from hunting; he has no right to compensation for damage caused by game and hunters;

(b) he has no right to hunt on his property;

(c) he cannot prevent other hunters from hunting on his property; they can hunt on his property without even informing him about it;

(d) his property had been leased to the local hunting club without his consent and he was not even informed about that fact.

2. The applicant also complains that logging on his property is not allowed without a permit because it is situated near the Bieszczadzki National Park and that he has to pay a tax on his property.

3. Furthermore, the applicant submits that the facts of his case disclose a violation of Article 3 (prohibition of torture), Article 4 (prohibition of slavery and forced labour) and Article 8 (right to respect for private life) of the Convention.

THE LAW

1. The applicant raises several complaints concerning his property, referred to in sections 1(a) to (d) above. The Court considers that they fall under Article 1 of Protocol 1 to the Convention.

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant also complains that logging on his property is not allowed without a permit because it is situated near the Bieszczadzki National Park and that he has to pay a tax on his property. In addition, he submits that the facts of his case disclose a violation of Article 3 (prohibition of torture), Article 4 (prohibition of slavery and forced labour) and Article 8 (right to respect for private life).

The Court, after considering the case as a whole, and assuming that the applicant exhausted domestic remedies, finds in the particular circumstances of the case that those complaints have not been substantiated and do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that the complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaints under Article 1 of Protocol No.1 concerning his property, referred to in sections 1(a) to (d) above;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President

[1] The lower chamber of the Polish parliament.