Hunting law

Literature

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Bütler, Michael, Praxis und Möglichkeiten der Revision des schweizerischen Jagdrechts, in: Bundesamt für Umwelt (Hrsg.), Zürich 2008 (zit. Bütler, Jagdrecht); Bütler, Michael, Ausgewählte Aspekte zum Jagd- und Fischereirecht, in: Keller, Peter M./Zufferey, Jean-Baptiste/Fahrländer, Karl Ludwig (Hrsg.), Kommentar NHG, Ergänzt um Erläuterungen zu JSG und BGF, 2. Aufl., Zürich 2019, (zit. Bütler, Kommentar JSG); Bütler Michael, Erschliessung und Ausbau von Skigebieten aus rechtlicher Sicht, in: URP 2010 S. 411 ff. (zit. Bütler, URP); Egli, Samuel, Anzeigepflichten, Grundlagen - Normkonzepte - Entwicklungsmöglichkeiten, am Beispiel der Anzeigepflichten für Umweltverwaltungsbehörden Zürich 2020; Fellmann, Walter, Schweizerisches Haftpflichtrecht, Band III - Haftung nach den Gefährdungshaftungen des JSG, HFG, USG, GTG, EleG, RLG, SprstG, StAG und KHG 2008, Bern 2015; Gehring, Kaspar, in: Hürzeler, Marc/Kieser, Ueli (Hrsg.), Kommentar zum schweizerischen Sozialversicherungsrecht, UVG, Bern 2018 (zit. UVG Kommentar-Gehring); Hofer, Irene, Kommentar zu Art. 4-5, 9, 13, 13a, in: Frésard-Fellay, Ghislaine/Klett, Barbara/Leuzinger, Susanna (Hrsg.), Basler Kommentar, Allgemeiner Teil des Sozialversicherungsrechts, Basel 2020 (zit. BSK ATSG); Rausch, Heribert, Umwelt und Planung, in: Thürer, Daniel/Aubert, Jean-François/Müller, Jörg Paul (Hrsg.), Verfassungsrecht der Schweiz/Droit constitutionnel suisse, Zürich 2001; Schärmeli, Liliane/Griffel, Alain, Kommentar zu Art. 79-80 BV, in: Waldmann, Bernhard/Belser, Eva Maria/Epiney, Astrid (Hrsg.), Basler Kommentar, Bundesverfassung Basel 2015 (zit.: BSK BV); Seitz Andreas, Der Schutz des Wolfes in der Schweiz de lege lata et ferenda, in: URP 2011 S. 250 ff.; Sieber, Isabel, Die Haftpflicht für Jagdschaden, Diss. Zürich 1998; Spiess, Angelika, Wegleitung zur Typologie von Kompetenzen und Aufgaben von Bund und Kantonen, Freiburg 2016; Wagner Pfeifer, Beatrice, Umweltrecht - Besondere Regelungsbereiche, Ein Handbuch zu Spezialgebieten des Umweltrechts: Störfallvorsorge, umweltrechtliche Aspekte des Chemikalienrechts, Abfallrecht, Altlasten, Gewässerschutz, Natur und Heimatschutz, Wald u.a., Zürich 2021.

Materials

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Amtliches Bulletin der Bundesversammlung, Herbstsession 1984, Ständerat, S. 484 ff. (zit. Amt.Bull. S); Botschaft zu einem Bundesgesetz über die Jagd und den Schutz der wildlebenden Säugetiere und Vögel (JSG) vom 27. April 1983, BBl 1983 II, S. 1197 ff.; Erläuternder Bericht zur Änderung der Verordnung über die Jagd und den Schutz wildlebender Säugetiere und Vögel (Jagdverordnung, JSV) vom 30. Juni 2021 (zit. Bericht JSV); Botschaft der Regierung des Kantons Graubünden an den Grossen Rat des Kantons Graubünden über die Teilrevision des kantonalen Jagdgesetzes und der kantonalen Jagdverordnung vom 21. Juni 2016, Heft Nr. 6 /2016 –2017, S. 331 ff. (zit. Botschaft GR); Quartalsbericht Grossraubtiere 3 & 4 2022 vom 17. Februar 2023, Amt für Jagd und Fischerei Graubünden (zit. Quartalsbericht Grossraubtiere GR).

I. Legal Sources on Hunting Law

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Hunting moves - be it on an emotional level, when it comes to its socio-political legitimacy, or from an actual point of view, when mountain hunters climb steep slopes and rock faces. Hunting is mountain sports in one of its most original forms. In the mountains, a wide variety of animal species are hunted: from ungulates (chamois, roe deer, red deer, ibex, etc.) to rodents (marmots) and predatory (fox, badger, marten) and feathered game (ptarmigan, black grouse, etc.).

A. Dynamic, legislative processes

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The hunting law has grown historically and has a broad, legal basis (see immediately Rz. 7 ff. I./C.). Developments in the recent past have led to a strong, legislative dynamic that also affects the legal sources on hunting law. These developments include, among other things, the handling of large predators (wolf, bear, etc.). Large predators enjoy strict protection both at the national and international level. Due to increasing numbers of large predators (especially wolves), major conflicts of use arise in the mountains: on the one hand, the protection of large predators and on the other hand, dealing with the damage caused by large predators (e.g., livestock kills). The legislator has to take these conflicts of use into account, which is undoubtedly a complex task that cannot be accomplished without weakening the protection for large predators (see Seitz, p. 250 ff.).

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Especially in the mountains, the wolf population thrives. In Graubünden, the current population is estimated at at least 94 individuals (see Graubünden Office for Hunting and Fishing). As a result, the wolf population is increasingly regulated by hunting, which has an impact on hunting law: The Federal Council approved the revised hunting ordinance (Ordinance on Hunting and the Protection of Wild Mammals and Birds of February 29, 1988) and put it into effect on July 15, 2021. The revised hunting ordinance follows two motions by Parliament (UREK-NR 20.4340; UREK-SR 21.3002). The motions demanded that, after the rejection of the revision of the Hunting Act by the voting population in September 2020, the ordinance should be adapted within the framework of the current law. With the revised hunting ordinance, cantons are allowed to intervene more quickly in wolf populations (see announcement of June 30, 2021 and JSV report p. 1 ff.). In Graubünden, in September 2022, a single wolf causing damage, the female F82, was killed in Klosters. What was special was not the shooting itself, but the specific, cantonal enforcement: In addition to the staff of the Office for Hunting and Fishing, specially designated, local hunting license holders were also authorized during the regular hunting season (see press release of September 26, 2022 and Quarterly Report Large Predators GR).

B. Historical Development of Hunting Law

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Hunting was first regulated in the Federal Constitution of 1874. Art. 25 of the aBV of May 29, 1874 read (AS 1999 2556): "The Confederation is authorized to make legal provisions concerning the exercise of fishing and hunting, in particular for the preservation of high game, as well as for the protection of birds useful for agriculture and forestry."

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At that time, animal populations, especially those of even-toed ungulates (e.g., chamois, red deer, and roe deer), had reached an absolute low, which was due both to the turmoil of war in the first half of the 20th century and to poorly regulated hunting and strong poaching (BBl 1983 II, p. 1199). The constitutional basis and the associated legal basis (Law on Hunting and Bird Protection of June 24, 1904 and June 10, 1925 [AS 41 727]) did not miss their effect: Already in the message on the JSG of April 27, 1983, it was noted that the strict protection provisions of the then applicable Federal Law on Hunting and Bird Protection, as well as a change in mentality among hunters and the population, had led to strong, sometimes even excessive, wildlife populations (BBl 1983 II, p. 1199).

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The Federal Law on Hunting and Bird Protection pursued a dual mandate: On the one hand, the regulation of hunting and on the other hand, the protection of wild animals. This dual mandate was ultimately also incorporated into the Federal Law on Hunting and Protection of Wild Mammals and Birds of June 20, 1986 (JSG) (Art. 1 JSG; AS 1988 506), which is still in force today. A planned comprehensive revision of the JSG was rejected by the voting public on the occasion of the vote on September 27, 2020. Currently, parliamentary consultations are underway for a revision of the JSG (see media release of January 18, 2022).

C. Federal Level

1. Art. 79 BV

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Art. 79 BV is the highest federal legal source of hunting law, which has emerged from Art. 25 aBV (BSK BV-Schärmeli/Griffel, Art. 79 N 3): Compared to Art. 25 aBV, Art. 79 BV contains a significantly more ecological component, because the preservation of species diversity is fundamentally aimed for (BSK BV-Schärmeli/Griffel, Art. 79 N 4; Rausch, § 58 Rz. 23). Based on Art. 79 BV, the federal government establishes the principles for the exercise of fishing and hunting, in particular for the preservation of species diversity of fish, wild mammals, and birds.

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The wording of Art. 79 BV already reveals that the federal government only has a principle legislative competence: The sovereign power for hunting lies with the cantons. The federal government can only enact basic regulations for hunting (BSK BV-Schärmeli/Griffel, Art. 79 N 3; different Bütler, hunting law, p. 8, which speaks of a limited competence). The federal government has made use of this competence with the enactment of the JSG (Federal Act on Hunting and the Protection of Wild Mammals and Birds of June 20, 1986, SR 922.0).

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However, Art. 79 BV has no independent significance: Hunting is strongly influenced by species and animal protection. In connection with hunting law, Art. 78 para. 4 BV (habitat protection) and Art. 80 BV (animal protection) must always be taken into account (BSK BV-Schärmeli/Griffel, Art. 79 N 16).

2. JSG

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The JSG sets forth the principles according to which the cantons must regulate hunting (Art. 1 para. 2 JSG). The JSG aims to preserve the biodiversity and habitats of native and migratory wild mammals and birds, protect endangered animal species, limit damage to forests and agricultural crops caused by wild animals to a tolerable level, and ensure appropriate use of wildlife populations through hunting (Art. 1 para. 1 lit. a-d JSG).

a. Selected provisions on hunting law

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The cantons must take into account local conditions as well as the concerns of agriculture and nature conservation when legislating on hunting. Sustainable forest management and natural regeneration with site-appropriate tree species must be ensured (Art. 3 para. 1 JSG).

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Hunting may only be carried out by persons who hold a cantonal hunting license (Art. 4 para. 1 JSG). The hunting license is acquired based on an examination that ensures that hunters can handle hunting weapons and have the necessary knowledge of hunting law and hunting matters. Hunters must also know the huntable and protected mammals and birds and possess the required knowledge of ecological interrelationships (BBl 1983 II, p. 1203). Exceptions to the requirement of a hunting license can be made for persons preparing for the cantonal hunting examination and for hunting guests. However, the hunting license of these persons must be limited to individual days (Art. 4 para. 3 JSG). This regulation, which significantly expands the circle of hunting license holders, was only included in the autumn session of 1984 by the Council of States following a commission proposal. This was justified by the fact that young hunters "need to acquire a certain level of practice and should be introduced to this practice before taking the examination," and by the fact that it apparently is customary for "hunting societies, in the interest of maintaining a good relationship with farmers, foresters, etc., and with local authorities, to occasionally invite them to a hunt" (cf. Amt.Bull. S, p. 491).

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The JSG does not cover the entire fauna but has a limited scope of application. According to Art. 2 JSG, the law applies to the following wild animals: birds; predators; ungulates; hares; beavers, marmots, and squirrels (for animals not subject to the JSG, see below para. 25 I./C./3.). All animals not listed in Art. 2 JSG are generally protected (protected species; Art. 7 para. 1 JSG). Exceptions (e.g., hunting of ibex) can be found in Arts. 7 and 8 of the JSG (BSK BV-Schärmeli/Griffel, Art. 79 N 6).

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Art. 5 JSG specifies the huntable species and the closed seasons for huntable species. Art. 5 JSG sets a lower limit. Accordingly, cantons are free to extend the closed seasons or limit the list of huntable species (Art. 5 para. 4 JSG). Non-native or harmful animals (raccoon dog, raccoon, etc.) can be hunted all year round (Art. 5 para. 3 JSG).

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In addition to the closed seasons, there are various other provisions for the protection of huntable species, with protected areas according to Art. 11 JSG being particularly noteworthy: The legislator wanted to create the instrument of protected areas not only for the purpose of increasing wildlife populations but also to establish a modern concept to counteract

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(BBl 1983 II, p. 1209; see also Büttler, URP, p. 411 ff.).

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In many areas of Switzerland, agricultural land, economic forests, and natural areas meet or are even connected, which inevitably leads to damage and tensions among foresters, farmers, nature conservationists, and hunters. To counteract this problem, the JSG regulates the handling of wildlife damage (BBl 1983 II, p. 1211). Prevention is given priority (Art. 12 JSG). Compensation for wildlife damage is a subsidiary tool (Art. 13 JSG; Büttler, Commentary JSG, N 50 ff.; Wagner Pfeifer, Rz. 1588; in detail on wildlife damage Büttler, Hunting Law, p. 20 ff.).

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In mountain cantons, protective forests are of particular importance. Protective forests are meant to protect against rockfall, landslides, and avalanche formation. In recent years, problems with forest rejuvenation have been increasingly observed - including in Graubünden. In addition to climatic issues, wildlife damage (browsing) is also a cause. Therefore, the government of the canton of Graubünden has developed a sustainable solution with the strategy "Habitat Forest-Wildlife 2021" to improve this situation. From a hunting perspective, this strategy is mainly implemented by building up wildlife populations close to nature, which requires regional determination of hunting objectives and regionally adapted regulation. This is implemented, among other things, with the ordinance on hunting operations (hunting operation regulations) (see also press release of August 13, 2021).

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The information, education, and research stated in Art. 14 JSG is primarily of declaratory significance. The corresponding efforts are primarily the responsibility of the cantons (BBl 1983 II, pp. 1212 f.).

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The liability and criminal provisions in the JSG are addressed elsewhere (see below Rz. 30 ff. II. and 33 f. III.)

b. Ordinances

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The JSG is mainly specified at the ordinance level by the JSV (Ordinance on Hunting and the Protection of Wild Mammals and Birds of February 29, 1988, SR 922.01). In recent history, the ordinance has been of crucial importance, particularly with regard to large carnivore management, as evidenced by numerous provisions (e.g., Art. 4^bis JSV and Art. 9^bis ff. JSV).

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Based on the JSG, the Federal Council has issued two further ordinances that significantly co-determine hunting law: The VEJ (Ordinance on Federal Hunting Prohibition Areas of September 30, 1991, SR 922.31) and the WZVV (Ordinance on Water and Migratory Bird Reserves of International and National Importance of January 21, 1991, SR 922.32). In light of the regulatory density and detail of the VEJ, it appears at least questionable whether the ordinance maker has gone beyond the federal fundamental legislative competence (see for the concept Spiess, Rz. 18) (e.g., regulations concerning game wardens; Art. 11 ff. VEJ).

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The VEJ aims to protect and preserve rare and endangered wild animals and their habitats in hunting prohibition areas. On the other hand, hunting prohibition areas should serve to maintain healthy populations of huntable species adapted to local conditions (Art. 1 VEJ). In addition to the hunting prohibition area, where hunting is generally prohibited, the conservation and protection objectives are to be ensured with various accompanying measures: marking of hunting prohibition areas (Art. 7 VEJ); hunting measures (Art. 9 ff. VEJ); game wardens (Art. 11 ff. VEJ; see for the whole Wagner/Pfeifer, Rz. 1564 ff. m.w.H.).

3. NHG and TschG

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The protection of wild animals not subject to the JSG is governed by the NHG (Federal Act on Nature and Cultural Heritage Protection of July 1, 1966, SR 451). However, the NHG is subsidiary to the JSG, which is already evident from the reservation in Art. 18 para. 4 NHG (according to Bütler, the precedence of the JSG does not apply absolutely, but only to the extent that the legislator in the JSG has consciously deviated from the NHG. This assessment is to be agreed with; see Bütler, Commentary JSG, Rz. 5). However, the NHG and the JSG are designed with regard to the similar objectives in such a way that conflicts are hardly conceivable (Bütler, Commentary JSG, Rz. 5).

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The TschG (Animal Protection Act of December 16, 2005, SR 455) also contains a reservation in favor of the JSG in Art. 2 para. 2. Therefore, in the case of norm collisions, the hunting law provisions in the JSG take precedence over the animal protection law provisions in the TschG (Bütler, Commentary JSG, Rz. 5). Based on Art. 2 para. 2^bis JSV, the cantons are obliged to ensure animal welfare-compliant hunting by establishing rules for hunting aids (firearms and hunting dogs) (the aim is to ensure animal welfare-compliant killing; see Bütler, Commentary JSG, Rz. 5).

D. Cantonal Level

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Hunting law is a historical sovereign right that belongs to the cantons (Art. 94 para. 4 BV). Therefore, hunting affairs are regulated by the cantons - apart from the federal principles (Art. 1 para. 2 JSG; Wagner Pfeifer, Environmental Law, Rz. 1556 with reference to BGer 2C_975/2015 of March 31, 2016). The cantons are thus competent and in many cases even obliged to enact cantonal detailed provisions for federal basic legislation (Bütler, Commentary JSG, Rz. 5).

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However, in the area of species and animal protection, the federal government has legislated in detail, so that in these subject areas, the cantons primarily have the option to go beyond the federal minimum requirements (BSK BV-Schärmeli/Griffel, Art. 79 N 11).

E. Municipal Level

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To what extent municipalities are competent to legislate on hunting-specific issues is based on the respective cantonal legislation. In the canton of Graubünden, for example, municipalities do have certain legislative competencies (see the Hunting Act of the Canton of Graubünden, BR 740.000). This is the case, among other things, in the area of ​​construction-related hunting facilities (Message GR, p. 335 f.).

II. Private Law

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From a private law perspective, the liability of hunters is of particular importance. According to Art. 15 para. 1 JSG, whoever causes damage through hunting is liable. This provision, which establishes a causal liability for hunters, was initially intended only for damage to real estate and crops but was later extended to all damages by persons exercising hunting during the parliamentary deliberations (Fellmann, § 16 N 2). However, hunters should not be liable for damages to third parties (including hunting guests) (Fellmann, § 16 N 2 with reference to Amtl. Bull SR 1924, 310 ff.).

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Art. 15 JSG is a strict liability. The justification for strict liability arises from the danger of firearms used in hunting (endangering life and limb; Fellmann, § 16 N 4; Sieber, p. 41). The scope of application of Art. 15 JSG covers only hunting damage, not wildlife damage (Fellmann, § 16 N 7 f.; Sieber, p. 44). The former includes all damages caused during hunting, while the latter covers damages caused by game animals to forests, agricultural crops, or domestic animals (Sieber, p. 48 f.).

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As a logical consequence of the legally anchored strict liability, there is a compulsory insurance (Art. 16 JSG): All hunting beneficiaries must take out insurance for their liability.

III. Criminal Law

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Hunting touches upon various areas that are of criminal relevance. In addition to the classic hunting accidents involving personal injury (these accidents are often due to the use of firearms; see the statistical survey 2020 of the Swiss Council for Accident Prevention, Fatal Sports Accidents 2000–2019) or property damage, for example, environmental criminal law (in this context, reporting obligations are particularly important; see Egli, Reporting Obligations, para. 84 ff.) or animal welfare criminal law (the Animal Welfare Act, for example, penalizes those who kill an animal in a cruel manner or out of malice; see Art. 26 para. 1 lit. b Animal Welfare Act) should be mentioned.

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At the federal level, criminal provisions can be found, among others, in Art. 17 et seq. JSG, which penalize various actions related to hunting. The prosecution is the responsibility of the cantons (Art. 21 JSG), which can lead to special constellations. For example, in the canton of Graubünden, based on this, the hunting prosecution competencies are legally attributed to hunting supervisory personnel (national park rangers, game wardens, etc.). They have the same rights and obligations as the cantonal police (Art. 44 para. 2 KJG, cantonal hunting law of the canton of Graubünden of June 4, 1989, BR 740.000).

IV. Social Insurance Law

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According to the Federal Accident Prevention Advisory Centre, 66 people died in hunting accidents between 2000 and 2019 (see the statistical survey 2020 of the Accident Prevention Advisory Centre, Fatal Sports Accidents 2000–2019). Hunting is undoubtedly dangerous. The vast majority of hunting accidents are not due to the use of firearms, but to falls, crashes, cuts, tick bites, etc. (see the detailed evaluation by JagdSchweiz). The list shows that typical hunting accidents (such as falls and crashes) generally also meet the definition of an accident in the context of social insurance law: According to Art. 4 ATSG, an accident is the sudden, unintentional harmful effect of an unusual external factor on the human body, which results in impairment of physical, mental, or psychological health or death (in detail on the concept of an accident according to BSK ATSG-Hofer, Art. 4 N 6 ff.).

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Precisely because hunting accidents occur repeatedly, it is important from a social insurance perspective that hunting accidents affecting hunters are insured through accident insurance. It should be noted that according to Art. 39 UVG and Art. 50 UVV, cash benefits may be reduced and even denied in particularly severe cases for non-occupational accidents resulting from a risk (in detail on the concept of an accident according to BSK ATSG-Hofer, Art. 4 N 6 ff.). Risks are actions that expose the hunter to a particularly high danger (UVG Commentary-Gehring, Art. 39 N 58). The danger is considered particularly great if the risk is so high that assuming it is not reasonable for the community of insured persons according to the basic idea of the reduction provisions (UVG Commentary-Gehring, Art. 39 N 58). Whether a danger is classified as particularly high or not depends on objective external factors and the subjective abilities and characteristics of the acting person (UVG Commentary-Gehring, Art. 39 N 59). It is therefore crucial what skills and experience the hunter has: Mountain hunting in steep, sloping terrain is generally not particularly dangerous for experienced mountain hunters. For inexperienced hunters who do not normally hunt in the mountains, however, the same situation can pose significant risks of falling and is therefore considered a risk (see BGE 97 V 72 E. 2b:

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"The necessary relativization was found by assessing the dangerousness of an activity not simply from the point of view of the average person, but by taking the average of those persons who are regularly involved in the activity in question […]."

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This distinction is particularly emphasized in mountain hunting, which is practiced by both experienced and inexperienced mountain hunters. One example is the ibex hunting in the canton of Graubünden, which is accessible to all hunters – including those who do not normally hunt in the mountains. Not without reason and based on experience, the cantonal Office for Hunting and Fishing states that hunting "requires a high level of mountain fitness, endurance, identification, and shooting skills" according to experience.