FOURTH SECTION

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 11 June 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mr J. Makarczyk , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 August 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 regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties' oral submissions at the hearing on 11 June 2002,

Having deliberated, decides as follows:

THE FACTS

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.

A. The circumstances of the case

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. (...)”

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.

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 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,

2. during the hunt.”

Article 47

“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. ”

Article 49

“ 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.”

Article 50 (1)

“The State Treasury shall be responsible for damage caused by game under permanent protection”

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 DEM 3,300 for each taken medium-seized deer. The Directorate invested those funds in the preservation of forests.

4. The Constitutional Complaint

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. (...)”

5. Protection of property

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.”

6. The Code of Civil Procedure

Article 401¹ of the Code of Civil Procedure provides, in so far as relevant:

Ҥ1. 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.”

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 that the Polish Government discriminated against him by keeping in place unfair legislation unchanged since the communist era. In that context, he made the following complaints:

(i) game living on his property belonged to the State but when it caused damage to the fruits of his labour the State was not liable; what is more, the State increased the number of game because it – together with local hunting clubs – derived profits from hunting; he had no right to compensation for damage caused by game and hunters;

(ii) his property was leased to the local hunting club without his consent and he was not even informed about that fact; he could not prevent other hunters from hunting on his property and they could hunt on his property without even informing him about it;

(iii) he had no right to hunt on his property.

THE LAW

1. The applicant alleged that the inability to obtain compensation for damage caused by game and hunters and the compulsory transfer of the right to hunt on his property were in breach of Article 1 of Protocol No. 1. This provision reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Whether the applicant has exhausted domestic remedies

1. Arguments of the parties

The Government submitted that the application was inadmissible because the applicant failed to exhaust domestic remedies. In particular, they considered that the applicant should have notified the damage to the local hunting club. This would make it possible to assess the damage according to the rules issued under Article 49 of the Hunting Law. It would be then open to the applicant to settle his claim with the hunting club. The Government submitted that 90% of claims for compensation were settled under this procedure.

The Government also averred that the applicant could have lodged a claim for compensation with a civil court. They pointed out that 10% of such claims were litigated in civil courts. At the hearing the Government presented the case-law of domestic courts in cases concerning claims for compensation for damage caused by game. They referred to the judgment of the Warsaw Court of Appeal delivered on 18 November 1992 in a case no. I ACr 705/92. The court decided that the Hunting Club “H” was responsible for damage caused by game to the plantation of spruce trees owned by the plaintiff J.B. and awarded him 10,980,900 old zlotys. The court also stated that the notion of harvested crops and crops under cultivation included a plantation of spruce trees.

Moreover, the Government referred to the judgment of the Zielona Góra Regional Court delivered on 15 February 2000 in a case no. I C 230/98. The court awarded the plaintiff company “T” an equivalent of 78,000 euros in compensation for damage caused by game to the plantation of spruce trees.

The Government further submitted that the constitutional complaint was “the most proper” remedy in the present case. It was introduced in domestic law on 17 October 1997, when the new Polish constitution entered into force. The Government pointed out that if the applicant had been dissatisfied with the outcome of the proceedings before civil courts he could have lodged a complaint with the Constitutional Court. Had he won the case, the Constitutional Court could have quashed the impugned legislation breaching the applicant's Convention rights and he would be able to apply for the reopening of his case under Article 401¹ of the Code of Civil Procedure. The civil courts would then be able to award him compensation as the impugned legislation would no longer be in force.

Furthermore, the Government submitted that the Ombudsman's letter of 30 July 1997, relied on by the applicant, was based on an erroneous premise that the applicant's property consisted of a nursery on land classified by zoning laws as “a forest ground”, whereas in fact it was agricultural land with crops grown for commercial reasons.

Finally, the Government strongly objected to the statement made during the hearing by the applicant's counsel that the applicant was poor and could not afford the cost of litigation. They pointed out that a legal aid scheme existed in Poland and everybody could apply for free legal services.

The applicant averred that he did not submit his claims to domestic courts because the remedies available under domestic law were not effective. At the hearing, the applicant's counsel stated that it was not necessary to exhaust domestic remedies since the applicant would have failed. In this connection he referred to the Ombudsman's letter of 30 July 1997. In addition, the applicant was poor and could not afford the cost of litigating his clams in domestic courts. As for the constitutional complaint, it was introduced on 17 October 1997, i.e. after the applicant had lodged his application on 27 August 1997.

Furthermore, counsel did not address the case-law of domestic courts put forward by the Government but confined himself to repeating his claim that available domestic remedies were theoretical and not effective.

2. The Court's assessment

(a) General principles

By virtue of Article 1 (which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”), the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is further articulated in Articles 13 and 35 § 1 of the Convention (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).

The purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. The rule in Article 35 § 1 is based on the assumption, reflected in Article 13 (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged breach of an individual's Convention rights. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law.

Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies that are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness.

Furthermore, in the area of exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to convince the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him from the requirement.

The Court has emphasised that the application of the rule of domestic remedies must make due allowance for the fact that it is being applied in the context of the machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case. This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see, among other authorities, Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1209, §§ 65-66 and Selmouni v. France [GC], no. 25803/94, §§ 74-77, ECHR 1999-V).

At the same time, the Court has considered that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Milošević v. the Netherlands (dec.), no. 77631/01, 19 March 2002, unreported).

(b) Application of the above principles to the instant case

The Court notes that at the hearing the Government provided examples of judgments given by civil courts in which plaintiffs successfully obtained compensation for damage caused by game to their plantations of spruce trees. The applicant's counsel did not contest the existence of these decisions but merely stated that in his opinion an action for compensation before a civil court was not an effective remedy. However, in view of domestic case-law advanced by the Government, the Court sees no reason to doubt the effectiveness of this remedy. What is more, adversarial proceedings before a civil court would provide a ground for settling a dispute concerning the nature of the applicant's property. As for the claim that the applicant was unable to afford civil proceedings, and leaving aside the question whether a person who has made investments on a scale made by the applicant could indeed be considered poor, the Court would only observe that the applicant did not even apply for legal aid.

Furthermore, if the applicant had not been successful in seeking compensation caused to his property by game and hunters before the civil courts, he would have available another legal avenue for seeking redress, namely a constitutional complaint. In the particular circumstances of the present case, it is clear that after the passage of time needed to complete the civil proceedings, the applicant would also have this remedy readily available to him. Moreover, a constitutional complaint would provide him with an opportunity to challenge the legislation concerning a compulsory transfer of hunting rights. In this connection, the Court notes that the applicant directed his complaint against domestic legislation, which in his view was unfair and remained unchanged since the fall of communism. He could therefore have challenged the impugned legislation before the Constitutional Court, which had the power to quash it. If the applicant had been successful, it would have been open to him to request under Article 401¹ of the Code of Civil Procedure the reopening of the case and an award of compensation.

Finally, the Court would observe that it is immaterial that the applicant had doubts as to the prospects of success of remedies provided by domestic law since according to the Court's case-law this is not a valid reason for failing to exhaust domestic remedies.

The Court concludes that the applicant has not established that the remedies advanced by the Government were in the circumstances of his case ineffective or that there existed special circumstances absolving him from the requirement to exhaust domestic remedies. He did not give the respondent State the opportunity of preventing or putting right the violations alleged against it but instead submitted his grievances to the European Court of Human Rights.

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant also raised a complaint that he could not hunt on his property. At the hearing neither the applicant nor the Government made any submissions concerning this complaint. The Court notes that the applicant did not make any attempts to fulfill the legal requirements for hunting and in particular he did not apply for a hunting licence. It follows that this complaint must also be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President