The Administrative Cassation Court Within the Supreme Court Assessed the Compliance of a By-Law with the Legislation When Considering the Case on Regulating the Procedure for Selective Shooting of Animals

The Ministry of Agrarian Policy and Food of Ukraine refused to bring the Instruction on the selective shooting of game animals, approved by the Order of the Ministry of Agrarian Policy of February 7, 2014, No. 57 (Instruction), into line with the Law of Ukraine On Hunting Economy and Shooting, arguing that the by-law does not contradict part 5 of Art. 32 of this Law.

The Kyiv Ecological and Cultural Centre Charitable Foundation of the Dniprovsky District of Kyiv believed that in this way the authority did not regulate the procedure for obtaining / granting permission for selective shooting of animals within the territories and objects of the natural reserve fund, which includes, in particular, nature reserves. The charitable foundation asked the court to recognize such inaction as unlawful and oblige the defendant, within its powers, to eliminate the contradictions and bring the Instruction into line with the current legislation on establishing a ban on selective shooting of animals in nature reserves, as well as a ban on selective shooting of animals by another hunter who has a permit for selective shooting.

The courts of first and appellate instances granted the claim in full. The Supreme Court upheld such decisions, dismissing the cassation appeal of the Ministry of Agrarian Policy.

The panel of judges of the Administrative Cassation Court within the Supreme Court rejected the defendant's arguments that the Instruction did not regulate the relations of selective shooting of game animals and its prohibition in nature reserves, but only established the procedure for granting / obtaining permits on the territory of the natural reserve fund. This is refuted by the provisions (clause 1.2, section I) of the same Instruction, which establishes a procedure for selective shooting of game animals, registration and issuance of permits for selective shooting, criteria for selecting game animals to be shot, that are uniform for all users of hunting grounds.

As to the applicant's argument that part 5 of Art. 32 of the Law of Ukraine On Hunting Economy and Shooting regulate the prohibition of shooting animals in nature reserves, while parts 1-4 of Art. 32 of the Law provide for selective and diagnostic shooting of game animals only, the SС panel of judges drew attention to the following.

The concept of "animals" found in Art. 1 of the Law of Ukraine On the Protection of Animals from Cruelty covers both domestic and wild animals. According to Art. 1 of the Law of Ukraine On Hunting Economy and Shooting, game animals are wild animals and birds that can be hunted.

Thus, using terms "animals" and "game animals" in Art. 32 of the Law of Ukraine On Hunting Economy and Shooting, the legislator differentiates between them. Therefore, the ban on selective shooting of animals in nature reserves applies to any animals, including game ones.

Consequently, the procedure for conducting selective shooting of game animals, for registration and issuance of permits for such shooting, as defined by the Instruction, falls under the regulation of part 5 of Art. 32 of the Law of Ukraine On Hunting Economy and Shooting and must comply with it.

In addition, the panel of judges recognized as groundless the arguments of the appellant that, by imposing on the Ministry of Agrarian Policy the obligation to take actions to bring the Instruction in line with the requirements of the current legislation, the courts had interfered with the discretionary powers of a public authority. After all, according to paragraph 4 of part 2 of Art. 245 of the Code of Administrative Procedure of Ukraine, if the claim is granted, the court may, in particular, recognize the inaction of the subject of authority as unlawful and oblige him to perform certain actions.

In the present case, the defendant's obligation to take a specific decision on the plaintiffs' application could be considered an interference with the discretionary powers of a subject of authority. At the same time, the obligation of the Ministry of Agrarian Policy to take actions aimed at eliminating disagreements in regulatory legal acts, without specifying such actions and indicating the need to make appropriate decisions, cannot indicate that the court has resolved issues related to the functions and exclusive competence of the defendant.

The Resolution of the Supreme Court of August 30, 2022, in case No. 826/859/17 (administrative proceedings No. К/9901/7316/19) – https://reyestr.court.gov.ua/Review/105973810.

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