Published on 14 November 2022
FIRST SECTION
Applications nos. 21050/22 and 21755/22
Agnieszka Agata CURYL-KATHOLM against Poland
and EURO-FARMING Sp. z o. o. against Poland
lodged on 16 April 2022 and 20 April 2022 respectively
communicated on 25 October 2022
SUBJECT MATTER OF THE CASES
The applications concern the obligation to tolerate increased game presence, game management activities and hunting on the applicants’ land.
The first applicant is a natural person. The second applicant is a limited liability company whose management board is presided over by the first applicant. The company is owned by the first applicant’s husband.
The applicants co-own a large agricultural estate in North-Western Poland. The estate in question is part of controlled hunting zone no. 88 (obwód łowiecki), created (pursuant to section 27 of the 1995 Hunting Act) by Resolution no. XV/198/20 adopted on 7 May 2020 by the West Pomerania Regional Assembly (sejmik województwa zachodniopomorskiego).
Pursuant to a lease contract signed on 22 September 2020 between the State Treasury’s Regional Directorate of State Forests Holding (Lasy Państwowe) and a local hunting club (koło łowieckie), controlled hunting zone no. 88 is used by the latter entity as a game feeding and hunting ground. The applicants submit that game in that zone is maintained in large numbers and made available for commercial hunting by foreigners.
The first applicant opposes hunting on her land for ethical reasons.
Both applicants oppose the nuisance of game management, as well as that of individual and collective hunting on their land, including an effective obligation to enable the hunting club to erect structures necessary for game management (such as feeders and hunting towers, sections 12 and 48 (7) of the Hunting Act).
Lastly, both applicants oppose the increased presence of game that is fed on and around their land because the game causes significant damage to their crops. As to the latter, the applicants attached official assessments according to which damage to their crops caused by game in 2021 amounted to 172,541 Polish zlotys (approximately 38,350 euros). The applicants maintain that the cost of actual damage was much higher.
The applicants submit that they are not individually warned of upcoming collective hunts - they can only seek information about the hunts registered with their local mayor (section 42ab of the Hunting Act). The remedy provided for by section 42ab (3) and (5) of the Hunting Act, which offers landowners a right to object to the hunt, is ineffective because of the short time-limit and because the objection is valid only if the hunt is considered to endanger people’s security or lives. Nor are landowners individually informed of upcoming individual hunts: they can only consult a public hunting log in which such hunts must be registered in advance, but not earlier than 24 hours before the hunt (section 42b of the Hunting Act). Information about where the hunting log can be accessed is made public by a local mayor by means of a public announcement (section 42b (1e) of the Hunting Act).
Moreover, landowners cannot object or contribute to the development of annual and long-term game breeding plans (łowieckie plany hodowlane, sections 8a, 8b, and 8c of the Hunting Act). Landowners cannot lease a controlled hunting zone situated on their property (section 28 of the Hunting Act). They are not consulted about lease agreements concluded by the State Forests Holding with other entities (section 29 et seq. of the Hunting Act). The profit (rent) which is derived by the State Forests Holding from lease agreements is not shared with landowners whose property is the subject of the lease (sections 30 and 31 of the Hunting Act).
The applicants’ appeal and cassation appeal against Resolution no. XV/198/20 were dismissed, respectively, by the Szczecin Regional Administrative Court on 3 December 2020 and by the Supreme Administrative Court on 15 September 2021, essentially on the grounds that the applicants’ property rights were not breached. The latter ruling was served on the applicants’ lawyer on 21 October 2021.
Prior to the adoption of Resolution no. XV/198/20, the applicants submitted their objection to the plan to include their land property in the controlled hunting zone (pursuant to section 27 (9-11) of the Hunting Act). Their objection was not taken into consideration. The applicants submit that the procedure in question is inherently ineffective for any land unless the estate has specific features “that would significantly impede game management on it” or the inclusion of which in the hunting zone “would necessarily discontinue or significantly limit its current activity” (section 27 (12) of the Hunting Act). As to the latter, the applicants submit that the law essentially excludes objections made by estates which – like the applicants’ land – had, in the past, formed part of hunting grounds.
The applicants also submit that, for the same reasons as mentioned above, action for compensation for damage caused by game, by hunting or by game management activities, provided by section 27a of the Hunting Act, is a remedy not available to them and, ultimately, ineffective.
The first applicant has not availed herself of the possibility (available to natural persons pursuant to Section 27b of the Hunting Act) to submit formally a written declaration on the prohibition of hunting on her property. The first applicant submitted that the procedure in question would have deprived her of the right to claim compensation for damage caused by game to her crops (section 48 (7) of the Hunting Act).
The applicants complain, relying on Article 1 of Protocol No. 1 to the Convention, that the consequences of Resolution no. XV/198/20 unjustly and disproportionately restrict their right to their property and that no effective remedy exists to address this situation.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention (see, mutatis mutandis, Pasławski v. Poland (dec.), no. 38678/97, 11 June 2002)?
2. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
If so, was that interference necessary to control the use of property in accordance with the general interest?
In particular, did that interference impose an excessive individual burden on the applicants (see, mutatis mutandis, Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, §§ 79 and 82-85, ECHR 1999-III and the follow‑up case-law; Schneider v. Luxembourg, no. 2113/04, 10 July 2007; and Herrmann v. Germany [GC], no. 9300/07, §§ 76-80 and 93, 26 June 2012)?
(a) Did the domestic legal framework (for example, section 27 (9‑12) of the Hunting Act) ensure the adequate and effective participation of the applicants in the decision-making process concerning controlled hunting zones on their private land?
(b) Did the domestic legal framework (for example, sections 27a, 46‑49 of the Hunting Act and the applicable provisions of the Ordinance of the Minister of the Environment of 8 March 2010 concerning procedures for damage assessment and payment of compensation in respect of damage to crops) provide the applicants with the opportunity effectively to claim and obtain just compensation for damage caused on their land by its inclusion in the controlled hunting zone, by the game, by hunting or by game management activities?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?