Humane Protection of Animals Against the Effects of Fireworks Displays

This article is of a scientific and research nature. Its subject is the humane protection of animals, expressly declared by the Polish legislator in the provisions of the Animal Protection Act, as regarded in the context of wide access to individual use of fireworks by private persons. The author seeks an answer to the question whether the legislator’s high-sounding declarations expressed in the Animal Protection Act, providing for humane protection of animals in Poland, are reflected in respective national or local regulations which would make it possible for the owners or guardians of animals to protect them against the effects of fireworks, especially against noise. The aim of the research is to indicate who, if it has not already been done by the national legislator, is authorised to issue regula tions limiting the use of fireworks, in a manner modelled for example on Australian solutions, where displays can be organised by licensed, authorised companies, or in a manner whereby the owner or keeper of the animal is informed in advance by an announcement on the Internet or in a local news paper of the planned place and date of the pyrotechnic show, so that he or she can provide protection for his or her animal by moving away from the venue in advance. The analysis of national solutions aims to indicate how the shortcomings in this area should be addressed by the regional legislator.


INTRODUCTION
In recent years there has been a clear public interest in the humane treatment of animals. There is no doubt that humane treatment of animals translates into the proper treatment of all living beings. More and more people react to manifestations of cruelty to animals, quite commonly referred to -following the words of St. Francis of Assisi -as our lesser brothers. This applies not only to domestic pets, but also to farm animals.
The humane protection of animals in Poland encompasses all principles representing the attitude of people towards animals. 1 This protection stems from ethical motives that prohibit humans from inflicting unnecessary suffering on animals as living beings. 2 In general, it can be said that humaneness manifests itself in caring for the welfare of the animal. 3 Legal regulations providing for humane protection of animals date back to as early as the 1920s. In the provisions of the Decree of the President of the Republic of Poland of 22 March 1928 on the protection of animals, 4 the Polish legislator established a general prohibition on the abuse of all animals (domestic, tame, fowl, fish, amphibians) and inflicting unnecessary suffering on them under pain of criminal liability.
The humane protection of animals in Poland is not a constitutional right. Legal scholars classify the principle of the humane protection of animals as a part of environmental law. 5 It is established by provisions of the Act of 21 August 1997 on animal protection 6 which already in Article 1 (1) states that an animal is a living being, "Man owes it respect, protection and care". Article 5 APA unequivocally states that "Every animal requires humane treatment". At the same time, Article 4 (2) APA explains that humane treatment should be understood as "treatment which takes into account the needs of the animal and ensures its care and protection". In turn, according to Article 33 (1a) APA "killing of animals may only be carried out in a humane way".
The subject of this study is humane protection of animals, as expressly declared by the Polish legislator. The author analysed it using the legal and dogmatic and (to some extent) comparative approach in the context of providing animals with protection against explosions of fireworks, including noise. To this end, legislation at both national and local level has been analysed. The discussion has been augmented by an indication of the solutions adopted for the individual use of fireworks by private persons in other countries both within and outside Europe.
The aim of this study is to answer the question whether the above-mentioned high-sounding declarations of the legislator as expressed in the Animal Protection Act, providing for humane protection of animals in Poland, are reflected in respective national or local regulations which would make it possible for the owners or guardians of animals to protect them against the effects of fireworks. The analysis of national solutions -which should take into account the applicable standards, rules and norms 7 -aims to indicate how the deficiencies in this area should be supplemented by the regional legislator.

EFFECTS OF FIREWORKS ON ANIMAL BEHAVIOUR
For many people, fireworks (by which the author of this study means various pyrotechnics commonly available in the market, such as flares, fireworks, firecrackers, etc.) are an inseparable part of festive celebrations. However, it should be noted that the use of fireworks is equivalent to the explosion of sparks and flames, emission of smoke and, in particular, generation of noise, the level of which may exceed that of a jet aircraft take-off. 8 The smoke from fireworks contains harmful particulates that are toxic to both animals and humans when inhaled.
It is well known that cats and dogs have much better and more sensitive hearing than humans. If they are close to where firecrackers or fireworks explode they may be at risk of irreversible hearing loss. The panic of dogs when fireworks go off is a result of them not being able to find shelter or escape the noise. Birds in such situations become panicked, disoriented and crash into buildings or other obstacles. 9 Wild animals are hastily fleeing their habitats. Pets try to find a hiding place, for example in the basement, bathroom or closet. It is common for pets to run away in an uncontrolled manner, sometimes running amok for miles, unable to find their way back. Some animals get heart attacks. Many of them suffer from excessive 7 For more on a coherent image of law, see A. Bröstl Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 19/04/2022 11:50:36 U M C S salivation, tachycardia, urinate and defecate, or have gastrointestinal disorders. 10 For all these "lesser brothers" the experience of the noise caused by fireworks is a trauma, and on subsequent occasions they may manifest a phobia.
By the way, loud explosions caused by fireworks are annoying not only for animals. Sensory overload makes them especially stressful also for children, the elderly, and autistic people.

SOLUTIONS TO THE ISSUE OF FIREWORKS IN OTHER COUNTRIES
Of particular interest is the solution to the discussed problem adopted in the Italian town of Collechio in the province of Parma, where since 2015 a "quiet fireworks show" has been held instead of the traditional fireworks display. 11 The fireworks are provided by the Italian company Setti Firework, which specializes in the use of new pyrotechnic technologies, thanks to which the visual effects are spectacular with a limited acoustic impact. 12 The British Veterinary Association, being aware of the effects of fireworks on animals, has proposed normative regulation of the noise emitted by fireworks displays. This would be limited to 97 decibels, and the level of emitted noise would have to be indicated on the product placed on the market so that potential buyers could make informed purchase decisions. 13 Some countries provide for mandatory notification of the intention to hold a fireworks display. For example, in the Isle of Man, those planning private shows must notify the fire department of the location, date and time of the event, and then post these details in the local newspaper at least 10 days in advance. 14 In many countries, the use of fireworks is regulated by local law. In Belgium, for example, around 14% of all municipalities have introduced a complete ban on using fireworks. Similarly, in Canada, eight municipalities have passed orders banning fireworks. These are Edmonton, Medicine Hat, Red Deer, Lethbridge and Calgary.

U M C S
In Australia, as a rule, both the sale of fireworks and their use by private individuals have been prohibited since 2009. 15 Holding a fireworks show to add splendour to a private event is only possible with a professional licensed company. 16 For information purposes, a list of approved pyrotechnic display companies is posted on the Internet. This allows any pet guardian or owner to avoid areas where fireworks displays are held.
Another country where private use of fireworks is completely banned is Chile. They can only be enjoyed at public shows. 17 In many parts of the world, including Canada and Australia, prohibitions on the use of fireworks are not driven by animal welfare considerations but first and foremost by other factors, such as fire hazards and accidents and related human limb injuries. 18

National legislation
In Poland, there are no nationwide laws prohibiting the use of fireworks. In this respect, one can only refer to the provisions of Article 30 (1) (12) and Article 30 (1) (14) of the Act of 28 September 1991 on forests, 19 which stipulates that it is forbidden to disturb animals or make noise in forests. It can be inferred from this provision that setting off fireworks in forests is forbidden, as their use undoubtedly leads to noise and frightening of animals, especially wild animals.
At the same time, there are no nationwide regulations that indicate that the use of pyrotechnic products on private property is not permitted. The only limitation in this area results from Article 51 (1) of the Code of Minor Offences, 20 according to which anyone who disturbs peace, public order, rest at night or causes disorder in a public place by shouting, making noise, raising an alarm or any other behaviour shall be subject to penalty of arrest, restriction of liberty or a fine. Respecting the right to rest, Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 19/04/2022 11:50:36 U M C S companies that distribute pyrotechnics recommend using them to celebrate private events (such as wedding parties) before 10 p.m.

Enforcement regulations of municipal councils
For some time now, many municipal councils have been making efforts to limit, and often completely ban, the use of pyrotechnics within a municipality. Resolutions passed in this respect were based on Article 40 (3) of the Act of 8 March 1990 on municipal self-government, 21 treating the provisions contained therein as enforcement regulations. Pursuant to this provision, "Within the scope not regulated in separate acts or other universally binding regulations, the municipal council may pass enforcement regulations if it is necessary for the protection of life or health of citizens and for the assurance of public order, peace and security". These resolutions introduced bans on the use of pyrotechnics which are commonly associated with different types of fireworks. In many cases, they were repealed in a supervisory mode by voivodes or administrative courts.
For example, in April 2020, the Municipal Council of Świeradów-Zdrój passed a resolution in which it established a year-round ban on setting off fireworks, firecrackers and other pyrotechnic materials, especially due to the fact that patients staying at the health resort expect peace and quiet, additionally pointing to the threat caused by the discharge of fireworks or firecrackers to pets, wild animals and animals that go into hibernation in winter. 22 However, in May 2020 the Voivode of the Lower Silesian Voivodeship invalidated this resolution. 23 In the supervisory decision, the Voivode questioned the legality of these provisions, indicating that they had not specified any dangers that could have been averted by the application of these enforcement regulations.
The analysis of the rationale for the supervisory decision of the Voivode leads to the conclusion that one cannot agree with the argumentation contained therein, however, the very conclusion of the decision is in line with the law. The statutory authorisation to enact enforcement regulations takes the form of a norm of Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 19/04/2022 11:50:36 U M C S legislative competence, 24 i.e. one authorising the establishment of a general and abstract norm. 25 The enforcement regulations -by the will of the legislator -are to be treated as acts of local law. These, in turn, in accordance with Article 87 (2) of the Constitution of the Republic of Poland, 26 belong to the sources of universally binding law. Thus, they are, by the will of the constitutional and the ordinary legislator, law-making and not law-applying acts. 27 Lawmaking, on the other hand, unlike its application, does not require either the establishment of a factual situation justifying the issuance of a given act, nor provision of evidence that this factual situation occurred, nor performing a process of subsumption, which -as results from the rationale for the supervisory decision of the Voivode of the Lower Silesian Voivodeship -was required by this body. The condition for the issuance of enforcement regulations, which are law-making acts, 28 shall not be demonstrating by means of evidence that a situation of a threat to any of the legally protected goods has actually arisen. A hypothetical, i.e. abstract, possibility of a threat to any of these goods and the absence of legal regulations aimed at averting threats to these goods in this respect is sufficient.
The supervisory decision of the Voivode of the Lower Silesian Voivodeship deserves approval, albeit not for the reasons stated in its rationale. Enforcement regulations may not be issued when the subject matter is regulated by acts or other universally binding provisions. 29 The Voivode of the Lower Silesian Voivodeship alleged that the resolution of the Municipal Council of Świeradów-Zdrój failed to meet the premise of a "loophole in the law". This allegation is misconceived since there are no provisions in the system of universally applicable law which would prohibit the disturbance of public peace and order by "setting off fireworks". Using the terminology of criminal law, one can say that the essence of the act consisting in "setting off fireworks" is not prohibited by any provision of universally binding law. What is more, "setting off fireworks" is not only tolerated, but sometimes expected in situations usually defined by norms of customary law to celebrate various ceremonies, both official and private. Therefore, the prohibition of disturbing public order and peace contained in the Code of Minor construed in such a way that it generally covers "setting off fireworks", regardless of the circumstances. The conclusion of the supervisory decision of the Voivode of the Lower Silesian Voivodeship is to be endorsed since the provision of Article 40 (3) AMSG does not include within its scope the authority of municipalities to pass enforcement regulations for the protection of life or health of animals. The provision of Article 40 (3) AMSG authorises the establishment of prohibitions and restrictions for the sake of protecting human health and life. That authorisation cannot be used to infer -on the basis of the a maiori ad minus or a minori ad maius rule -the authorisation to lay down prohibitions and restrictions for the protection of animal life and health.
By the way, it is undoubtedly to be applauded that the local legislator (the municipal council) noticed the problem of inadequate protection of animal rights while trying to protect people from the effects of fireworks. The provision of Article 40 (3) AMSG may have been even consciously invoked when restrictions on setting off fireworks were introduced because the legislator realised that this provision did not provide a sufficient legal basis for the municipal council to adopt a ban in this scope. When passing resolutions in the form of enforcement regulations, municipal councils are guided by the generally available (e.g., on the CBOSA website) jurisprudence by administrative courts in similar types of cases. The analysis of the existing jurisprudence leads to the conclusion that in many cases administrative courts repealed enforcement regulations limiting the use of fireworks in a municipality. In many of their judgements, they have shown -by raising arguments related to the existence of Article 51 (1)  In the light of the above considerations, which indicate that the national legislator has not yet regulated the use of fireworks by private persons from the point of view of its impact on animal welfare, and the local legislator in the form of 30 municipal councils is not authorised to enact laws in this respect, one may wonder whether there is a loophole in the law, despite the fact that according to Article 1 (1) APA "an animal, as a living being capable of experiencing suffering, is not a thing. Man owes it respect, protection and care", and, pursuant to Article 5 APA, "every animal shall be treated humanely", i.e. treated in a manner that "takes into consideration the needs of the animal and ensures its care and protection".

Regional regulations
In addition to municipal councils, the legislator has vested in voivodes authority to enact local laws at a regional level. According to Article 60 (1) of the Act of 20 January 2009 on the voivode and government administration in the voivodeship: 33 "Within the scope not regulated in universally binding regulations, the voivode may pass enforcement ordinances if it is necessary for the protection of life, health or property and for the assurance of public order, peace and security".
Comparison of the limits of statutory authorisation to enact regulations in the scope of goods protected under Article 40 (3) AMSG with Article 60 (1) AGAV leads to the conclusion that the entity authorised to regulate the use of fireworks due to protection of animal rights is the voivode. The provision of Article 60 (1) AGAV does not limit the scope of protection referred to therein to humans, stating in general terms: "protection of life", "health".
An example of an authority that has addressed this issue in its ordinance is the Voivode of the Lubelskie Voivodeship, who on 21 December 2020 issued an ordinance banning the use of fireworks in public space. However, it is apparent from its wording that, in laying down the temporary prohibitions therein, the Voivode was guided by considerations of protecting human life and health and not those of animals.

CONCLUSION
The legally permissible freedom to enjoy fireworks displays, which can potentially explode every day on private properties in Poland, stands in stark contrast to the provisions of the Animal Protection Act, from which the high-sounding declarations of the legislator concerning the humane treatment of animals are derived. Currently, as there are no adequate regulations both at the national and regional level, it is impossible for an owner or a guardian of an animal to fulfil the provisions of Article 1 (1) APA which states that they owe it respect, protection and care. Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 19/04/2022 11:50:36 U M C S The lack of statutory (nationwide) regulation of the use of fireworks, through e.g. the introduction of a ban on their use by private persons (taking into account that this ban could be lifted after obtaining the permission of the competent authority, or allowing the authorisation of such events if organised by authorised companies) makes the basis for regional regulations under Article 60 (1) AGAV particularly important. This provision formulates a statutory authorisation on the basis of which voivodes may issue ordinances regulating the issue in question with a view to protecting animals and not only humans. However, a preliminary analysis of the enforcement provisions enacted by voivodes indicates that so far none of them has taken the legislative initiative to restrict the use of fireworks due to the protection of animals and the requirement of their humane treatment as derived from the Animal Protection Act.