U-I-98/04

Throughout the development of civilization, the importance of game as a natural resource for the society has been more emphasized than its importance for individuals, and thus the legislature has a broad field of discretion in regulating hunting. In the Game and Hunting Act, the legislature chose one of the possible forms of regulation, whereby it regulated the right to hunt as an independent right of a public law nature which does not stem from the ownership right to land. The legislature must adapt the substance of ownership entitlements to modern social circumstances. The regulation according to which the right to hunt is an independent right of a public law nature which does not stem from the ownership right to land falls within the boundaries of establishing the manner in which property is enjoyed, taking into account the substance of the right to hunt as well as the function of forests and land in modern social circumstances. The independent nature of the right to hunt which does not stem from the ownership right to land does not entail, as regards Articles 67 and 70 of the Constitution, an interference with the right to private property (Article 33 of the Constitution).

 

Land and forest owners, irregardless of the fact that the ownership right to land does not also contain entitlements related to exercising the right to hunt, can still exercise all the essential elements of the ownership right to land. Therefore, the regulation according to which the right to hunt is an independent right and is not a part of the ownership right to land and forests, cannot by itself be inconsistent with Article 69 of the Constitution.

 

The Constitutional Court, in applying the test referred to as the test of proportionality, established that the benefits brought by exercising the right to hunt in a manner such as determined in the Game and Hunting Act (ZDLov-1), outweigh the gravity of the interference with the rights of land and forest owners.

 

The legislature has, by the regulation determined in item 1 of Article 26 of the Game and Hunting Act (ZDLov-1), ensured the transfer of the existing rights of a concessionary character into a new legal regime, and by determining a priority right to former hunting ground managers [i.e. organisations] it ensured the protection of the acquired rights. Merely because the legislature achieved the transformation of the existing rights of a concessionary character into the new legal regime in two different manners (by granting concessions without a tender or by a priority right in granting concessions), the former hunting ground managers are not in an unequal position compared with subjects who managed other natural resources prior to the transition to the new legal regime. However, in cases in which concessions are granted subsequently, a sound reason to grant a priority right to hunting organizations which have managed the hunting grounds up to the present, no longer exists. Due to the fact that the priority right of former hunting ground managers is not limited only to the transitional period during which the former hunting ground managers should prepare for and adapt to the new regulation, Article 26 of the Game and Hunting Act (ZDLov-1) is inconsistent with paragraph 2 of Article 14 of the Constitution.

 

As the legislature in paragraph 6 of Article 29 of the Game and Hunting Act (ZDLov-1) departed from systematic regulation without a sound reason, based on a dominant and legitimate public interest, it interfered with the expected rights of local communities to receive a part of the payment for a concession as their own financial source. Therefore, paragraph 6 of Article 29 of the Game and Hunting Act (ZDLov-1) is inconsistent with Article 2 in conjunction with Article 142 of the Constitution.

 

As paragraph 8 of Article 29 of the Game and Hunting Act (ZDLov-1) does not determine any measures or criteria, i.e. the framework for distributing funds from a special fund to which concession fees for the implementation of sustainable game management are paid, the authorization given to the Ministry under paragraph 8 of Article 29 of the Game and Hunting Act (ZDLov-1) is not defined and consequently the principles of a state governed by the rule of law (Article 2 of the Constitution) were violated.

 

The conditions to be granted a concession are determined in a concession act. If a hunters' association does not fulfil all the conditions (inter alia also the necessary number of members), it would not be eligible to be granted a concession. It follows from the aforementioned that the statutory obligations to carry out a public service and other statutory obligations regarding game protection are imposed on the hunters' associations by being granted a concession and not merely due to its establishment. Determining the minimum number of members required for the establishment of a hunters' association is neither an appropriate nor necessary measure by which a constitutionally admissible goal would be achieved, i.e. the effective implementation of statutory tasks in the field of sustainable game management, as well as the carrying out of the public service. The condition that must be fulfilled in order to establish a hunters' association determined in paragraph 1 of Article 65 of the Game and Hunting Act (ZDLov-1) in the part which determines that a hunters' association may be established by at least 15 adults, is inconsistent with paragraph 2 of Article 42 of the Constitution. As in determining the conditions for the termination of the existence of the hunters' association the legislature did not differentiate between the conditions for the existence (establishment and termination) of the hunters' association and the conditions for a concession to be granted or revoked, item 1 of paragraph 7 of Article 65 of the Game and Hunting Act (ZDLov-1), which determines that a hunters' association ceases to exist if a concession it has is revoked, is inconsistent with paragraph 2 of Article 42 of the Constitution.

 

On the basis of paragraph 2 of Article 70 and the first sentence of paragraph 2 of Article 74 of the Constitution, the legislature may also determine the organizational form which seems the most appropriate for performing a public service and for acquiring the right to exploit natural resources. Due to the fact that sustainable game management requires the performance of numerous specialist tasks as well as special knowledge from the field of hunting and game protection, the Constitutional Court decided that the reasons for the regulation according to which the right to hunt may be acquired by concession only by qualified legal entities (hunters' associations) and not by natural persons are sound and objectively substantiated and connected with the subject of the regulation, and thus it cannot be considered that the legislature acted arbitrarily in adopting the challenged regulation. Therefore, the regulation is not inconsistent with paragraphs 1 and 2 of Article 74 of the Constitution in conjunction with paragraph 2 of Article 14 of the Constitution.

 

The Constitutional Court finds that the reasons for the differentiation between land owners and hunters' organizations as well as nature protection organizations in the formation of boundaries of territorial units are sound and objectively substantiated and connected with the subject of the regulation. Therefore, paragraph 3 of Article 6, paragraph 3 of Article 7, and paragraph 2 of Article 8 of the Game and Hunting Act (ZDLov-1) are not inconsistent with paragraph 2 of Article 14 of the Constitution.

 

The fact that land and forest owners do not have the right to compensation, although the Game and Hunting Act (ZDLov-1) determines a manner in which they must use land and forests, does not by itself entail an interference with Articles 33, 67, and 69 of the Constitution. Determining the manner in which property is enjoyed so as to ensure its economic, social, and environmental function does not only entail that owners must endure restrictions in exercising their ownership right, but also that obligations are imposed on them. Thus, Articles 31, 32, 33, 34, 35, and 36 of the Game and Hunting Act (ZDLov-1) are not inconsistent with Articles 33, 67, and 69 of the Constitution. Merely the fact that in paragraph 2 of Article 53 of the Game and Hunting Act (ZDLov-1) the obligation to carry out preventive measures is imposed on land owners, cannot by itself entail an interference with the right to private property.

 

As the possible introduction, reintroduction, or additional introduction of non-native and indigenous game is intended to ensure the natural balance between game, the environment, and measures for ensuring sustainable game population and habitat management in accordance with the type of game, such measures do not entail an interference with the right determined in Article 33 of the Constitution. Article 40 of the Game and Hunting Act (ZDLov-1) is not inconsistent with Article 33 of the Constitution.

 

Allowing hunting in smaller enclosures would cause a circumvention of the statutory regulation of game management. By such regulation, owners or enclosure holders would acquire the right to hunt as an independent right which is contrary to the fundamental principles of the Game and Hunting Act (ZDLov-1). Hunting in smaller enclosures would be contrary to the public benefit of protecting game as a natural resource. Therefore, paragraph 1 of Article 50 of the Game and Hunting Act (ZDLov-1) is not inconsistent with paragraph 1 of Article 74 of the Constitution.

 

The Constitutional Court finds that the benefits resulting from the regulation according to which an animal that has escaped from an enclosure is considered a free-living game animal after a time period of eight days is proportional to the weight of the consequences of the interference with the right to private property. As this is a case of the legal regulation of factual situations which may also potentially endanger the environment, the interest of the environment thus prevails over the interest of the individual. Therefore, paragraph 7 of Article 50 of the Game and Hunting Act (ZDLov-1) is not inconsistent with Article 33 of the Constitution.

 

The National Council cannot substantiate the inconsistency with the principle of proportionality and the principle of legality only by excessively general allegations stating that fines are too high. Therefore, Articles 75 and 76 of the Game and Hunting Act (ZDLov-1) are not inconsistent with the aforementioned principles.

 

The establishment of hunting grounds of particular importance entails an expert decision, and is intended for the special protection of the most well preserved and typical natural environments of the Republic of Slovenia, which is of general importance for the society. Therefore, it is in the nature of the matter that the establishment of hunting grounds of particular importance cannot be a local matter. Maintaining official records is a typical administrative task which falls within the state competence. Therefore, it is in the nature of the matter that establishing and managing a cadastre for hunting management areas cannot be a local matter. A concession to exploit natural goods can be granted only by the owner of such natural goods. Therefore, conducting procedures for granting concessions for sustainable game management and for deciding in such procedures is a state task. Regional associations of managers inter alia carry out administrative tasks which fall within the state competence on the basis of a public authorization. It follows from the aforementioned that the regional associations of [hunting concession] managers do not carry out tasks which would be in their nature of a local character. Therefore, the regulation according to which local communities do not participate in the establishment hunting grounds of particular importance (paragraph 3 of Article 7 of the Game and Hunting Act - ZDLov-1), in maintaining a cadastre for hunting management areas (Article 11 of the Game and Hunting Act - ZDLov-1), in granting concessions for individual hunting grounds (Articles 25 and 26 of the Game and Hunting Act - ZDLov-1), and in the regional associations of managers (Article 67 of the Game and Hunting Act - ZDLov-1), does not entail an interference with local community rights.