Antrag an den Europäischen Gerichtshof
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24.6.2011 Wir sind einen wichtigen Schritt weiter! Hier die erfreuliche Meldung: Der Vorprüfungsausschuss (5 Richter) hat den Antrag auf Vorlage an die Große Kammer des Europäischen Gerichtshofs für Menschenrechte angenommen! Die Beschwerde wird somit den 17 Richtern der Großen Kammer zur Entscheidung vorgelegt. download [119 KB] Entgegen der bisherigen Rechtssprechung des Europäischen Gerichtshofs für Menschenrechte im Falle von Klägern aus Frankreich Urteil EGMR 1999 und Luxemburg Urteil EGMR 2007 kam die Kleine Kammer am 20.01.2011 im Falle eines deutschen Klägers zu der überraschenden Entscheidung, dass die Menschenrechte von Grundeigentümern in Deutschland weniger wert sind als die Menschenrechte von Grundeigentümern in Luxemburg und Frankreich. Denn die Kleine Kammer des Europäischen Gerichtshofs für Menschenrechte wies die Beschwerde eines deutschen Grundstückseigentümers ab: Die Zwangsmitgliedschaft in einer Jagdgenossenschaft verstoße nicht gegen die Menschenrechte. Dies bedeutet: Jäger dürfen in Deutschland auch weiterhin auf Privatgrundstücken gegen den Willen der Eigentümer die Jagd ausüben. Das Urteil finden Sie hier. |
Der Beschwerdeführer Rechtsanwalt Herrmann und Rechtsanwalt Storr haben daraufhin den Antrag auf Vorlage des Rechtsstreites gegen die Bundesrepublik Deutschland an die Große Kammer des Europäischen Gerichtshofs für Menschenrechte ausgearbeitet.
Der Antrag wurde von den beiden Juristen in englischer Sprache verfasst, weil sie sich so intensiver mit dem englischen Urteil auseinandersetzen konnten.
„Ich denke, aus dem Antrag geht deutlich hervor, dass es keine seriösen Gründe gibt, um zulasten des deutschen Beschwerdeführers von der gefestigten EGMR-Rechtsprechung abweichen zu können“, so Rechtsanwalt Dominik Storr.
Wir drücken ganz fest die Daumen für alle Grundstückseigentümer, die nicht wollen, dass auf ihren Grundstücken gejagt wird!
Antrag vom 13.3.2011
European Court of Human Rights
Council of Europe 67075 Strasbourg-Cedex
France
IN THE CASE
HERRMANN v. GERMANY
APPLICATION no. 9300/07
According to Article 43 of the Convention, after entry of the judgment at 20 January 2011, I apply for motion to remit the case to the Grand Chamber of European Court of Human Rights.
Reasons for this application to remit the case to the Grand Chamber (Article 43 of the Convention and Article 73 European Court of Human Rights Rules of Court [Verfahrens-ordnung des Europäischen Gerichtshofs für Menschenrechte – EGMRVerfO]):
A.
I.
The case Herrmann v. Germany raises some serious questions affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention (B., D., E., F.).
II.
This case also raises a serious issue of general importance within the meaning of Article 43 of the Convention (C.).
III.
The applicant, as well as the judges Lorenzen, Berro-Lefévre and Kalaydjieva, do not share the Chamber’s opinion that there has been no violation of Article 1 of Protocol No. 1 of the Convention (D.).
IV.
The applicant, as well as the judge Kalaydjieva, do not share the Chamber’s opinion that there has been no violation of Article 11 of the Convention (E.).
V.
The applicant does not share the Chamber’s opinion that there has been no violation of Article 9 of the Convention (F.).
VI.
The applicant notes that the Court has violated Article 6 § 1 of the Convention (G.).
B.
The case Herrmann v. Germany raises a serious question affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention (I., II.).
I.
Divergences between Judgments of the Chambers of the European Court of Human Rights
The case Herrmann v. Germany raises a serious question affecting the interpretation or application of the Convention or the Protocols (Article 43 of the Convention) because the Chamber judgment differs from the Grand Chamber judgment Chassagnou and Others v. France ([GC] nos. 25088/94, 28331/95 and 28443/95, ECI-IR 1999-III) and the Chamber judgment Schneider v. Luxembourg (no. 2113/04, 10 July 2007). This divergence between judgments of the Chambers requires a decision of the Grand Chamber.
1.
All applicants alleged that their automatic adherence to a hunter’s association and their obligation to allow the exercise of hunting rights on their property violated their rights under Articles 9, 11 and 14 of the Convention and under Article 1 of Protocol No. 1 to the Convention (see Chassagnou and Others v. France, cited above, § 19; Schneider v. Luxembourg, cited above, § 3, 44; see § 3 of the judgment).
2.
The German applicant as well as the judges Lorenzen, Berro-Lefévre and Kalaydjieva cannot see why the interpretation of the Convention in France, Luxembourg and Germany should not be the same:
a)
In the French, Luxembourg and German cases, hunting is a leisure activity or sport (see Chassagnou and Others v. France, cited above, § 108; Schneider v. Luxembourg, cited above, § 59; see § 49 of the judgment).
b)
In the French, Luxembourg and German cases, the legal effects are identical. The legal effects for all applicants are their respective automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on their property so that others can make use of their property in a way which is totally incompatible with their beliefs (see Chassagnou and Others v. France, cited above, §§ 19, 85; Schneider v. Luxembourg, cited above, §§ 3, 44, 51; see §§ 3, 83 of the judgment).
c)
In the French and especially in the Luxembourg and German cases, the disputed legislation pursued several aims, including that of promoting the rational management of the cynegetic heritage and responsibility for the ecological balance and the game stock, while taking into account agricultural and forestry interests (see Chassagnou and Others v. France, cited above, § 108; Schneider v. Luxembourg, cited above, § 34; see § 32 of the judgment).
d)
In the French, Luxembourg and German cases, the effective possibilities for the applicants to successfully ensure that hunting rights were not exercised on their land were almost non-existent (see Chassagnou and Others v. France, cited above, § 115; Schneider v. Luxembourg, cited above, § 81; see § 45 of the judgment and also the SEPARATE DISSENTING OPINION OF JUDGE KALAYDJIEVA).
e)
In the French, Luxembourg and German cases, not all plots of the non-urban territory are grouped in a hunter’s association:
aa)
Under German hunting law, only the hunting rights of owners of plots having less than 75 hectares in area are automatically transferred to a hunting association (see § 69 of the judgment).
bb)
Under the Luxembourg’s hunting law, only the hunting rights of owners of plots having less than 250 hectares in area are automatically transferred to a hunting association (Schneider v. Luxembourg, cited above, § 53).
cc)
Under French hunting law, only the hunting rights of owners of plots having less than 20 hectares (60 in Creuse) in area are automatically transferred to a hunting association (Chassagnou and Others v. France, cited above, § 120).
3.
In France, where 29 of the 93 départements concerned had been made subject to the regime of compulsory adherence to hunting associations, the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed to be violations of the Convention — with only one dissenting vote (Chassagnou and Others v. France [CC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III).
4.
This is the same case in Luxembourg where the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed to be violations of the Convention - without a dissenting vote (Schneider v. Luxembourg, no. 2113/04, 10 July 2007).
5.
However, in Germany, the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed not to be a violation of the Convention.
6.
The German applicant, as well as the judges Lorenzen, Berro-Lefévre and Kalaydjieva, are not able to differentiate between these three cases.
7.
The conclusion accepted in the Chassagnou and Others and Schneider judgments was as follows:
“notwithstanding the legitimate aims … the result of the compulsory-transfer system has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1.” (see Chassagnou and Others v. France, cited above, § 85 and Schneider v. Luxembourg, cited above, § 51)
8.
The Chamber judgment has not noted this Court’s conclusion in the case Herrmann v. Germany.
9.
The Chamber judgment departs, without good reason, from precedents established in previous cases.
10.
The result of this surprising Chamber judgment is that the human rights of landowners in Germany are considered less important than the human rights of land owners in France and Luxembourg. In effect, this judgment represents discrimination because the juridical facts and the legal effects are identical in the French and especially in the Luxembourg and German cases.
11.
Since the Convention is first and foremost a system for the protection of human rights, the Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory [GC] Demir and Baykara v. Turkey, no. 34503/97, 12. November 2008).
12.
The Convention was created to ensure that the citizens in the Member States are guaranteed the same protection of their human rights. This spirit and purpose of the Convention can only be achieved in all Member States if the Convention is uniformly interpreted in cases that have similar fact patterns and which raise identical legal issues. The national legislation must correspond to the specifications of the Convention and not vice versa. Otherwise, the Member States would have the possibility of undermining human rights by means of their national legislation. If a State does not want to accept all Articles of the Convention, it can stay away from the Convention, as some States have done.
13.
The European Court was established to harmonize jurisdiction within the territory in which the European Convention of Human Rights applies.
14.
The Chamber judgment Herrmann v. Germany leads to different judgments in the Member States and to divergences between judgments of the Chambers of the European Court of Human Rights.
15.
In the light of all these considerations, the German applicant believes that the Chamber judgment should be reconsidered. It is in the interest of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents established in previous cases.
16.
These facts require a decision of the Grand Chamber.
II.
Differences of Interpretation of the Convention by the Judges
The great differences of interpretation of the Convention by the judges imply a serious question affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention. These great differences of interpretation of the Convention by the judges require a decision of the Grand Chamber.
1.
The judges Lorenzen, Berro-Lefévre and Kalaydjieva did not share the majority’s opinion that there has been no violation of Article 1 of Protocol No. 1 in this case.
The judges Lorenzen, Berro-Lefévre and Kalaydjieva pointed out:
“To our great regret we do not share the majority’s opinion that there has been no violation of Article 1 of Protocol No. 1 in this case.
In support of that conclusion, the Chamber judgment’s reasoning sets out numerous arguments demonstrating the existence of several points of divergence with the situations which, in the past, gave rise to the Chassagnou and Others v France ([GC] no. 25088/94, 28331/95 and 28443/95, ECHR 1999-III.) and Schneider v. Luxembourg (no. 2113/04, 10 July 2007) judgments in which violations of this Article were found.
For our part, we find it difficult to differentiate between these three cases.
Under Article 1 of Protocol No. 1, the only question which arises is whether the measure adopted was “necessary to control the use of property in accordance with the general interest”, it being understood that there must, of course, be a reasonable degree of proportionality between the measure in question and the aim pursued by it.
In the French, Luxembourg and German cases, the disputed legislation pursued several aims including that of promoting the rational management of the cynegetic heritage and respect for the ecological balance.
The question must therefore be asked whether the interference with property resulting from the impugned legislation is necessary in order to regulate hunting in accordance with the general interest, and whether that interference is reasonably proportionate to the objectives pursued.
In this respect, we are obliged to note that the answer has already been given in the French and Luxembourg cases, notwithstanding the qualifications highlighted by the German Government and repeated by the majority of the Chamber.
Thus, as in the above-cited cases, the effective possibilities for the applicant successfully to ensure that hunting rights were not exercised on his land were almost non-existent.
We would also point out that in the Schneider judgment, where the facts and context were the most similar to those in this case and which was adopted unanimously, the Chamber considered that the existence of compensation for the landowners concerned did not amount to sufficient legitimation for the compulsory membership of an association, given that the argument of an ethical objection to hunting could not meaningfully be weighted against an annual remuneration as consideration for the loss of the right to use the property, if only on account of the essentially irreconcilable nature of compensation in equivalence with the subjective argument invoked (see Schneider, cited above, § 49). Identical reasoning is therefore applicable in this case.
Equally, we are not convinced by the Chamber’s analysis in paragraphs 52 to 54, to the effect that there exists a difference in the reasoning given for the exceptions from the mandatory principle of area-wide hunting in the German legislation and that in force in France and in Luxembourg. Here too, independently of the arguments put forward, the only conclusion that can be reached is that those exceptions show that it is not essential to subject the entirety of the non-urban territory to the exercise of hunting rights.
The system put in place in Germany, intended to regulate hunting by ensuring increased protection for the cynegetic heritage, has resulted, as in the two previous cases, in a situation where it is impossible for the applicant to object to the exercise by third parties of their right to hunt on his land.
The conclusion accepted in the Chassagnou and Others and Schneider judgments was as follows: “notwithstanding the legitimate aim ….. the result of the compulsory-transfer system has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1”(see Chassagnou § 85, and Schneider § 51).
We are unable to see how a different result can be found in the Herrmann case. A violation of Article 1 of Protocol No. 1 must therefore be found in this case also.
In consequence, having regard to this finding, we also consider that it is not necessary to examine separately whether there has been a violation of Article 14 (taken in conjunction with Article 1 of Protocol No. 1).”
(see JOINT DISSENTING OPINION OF JUDGES LORENZEN, BERRO-LEFÈVRE AND KALAYDJIEVA)
2.
The judge Kalaydjieva did not even share the majority’s opinion that there has been no violation of Article 11 of the Convention.
The judge Kalaydjieva pointed out:
I joined the opinion of Judges Lorenzen and Berro-Lefèvre, which expresses our common failure to see how the different result of finding no violation of Article 1 of Protocol No.1 to the Convention was reached in the present case - having regard to the conclusions of the Court in the similar circumstances of the cases of Chassagnou v. France (Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-IIIi and Schneider v. Luxembourg (Schneider v. Luxembourg, no. 2113/04, 10 July 2007). In my view the same reasons for disagreement are equally valid for the conclusions of the majority on the applicability of Article 11 of the Convention to the circumstances of the present case.
Having agreed that in the present case “the hunting associations [to which the applicant was obliged to adhere] are sufficiently integrated into State structures in order to qualify them as public law institutions”, the majority arrived at the conclusion that Article 11 does not apply to the circumstances. Similar objections of the respondent Government in Chassagnou did not prevent the Grand Chamber from finding that the fact that the prefect supervised the way the associations operated was not sufficient to support the contention that they remained integrated within the structures of the State. The Court also found that it could not be maintained that the associations enjoyed prerogatives outside the orbit of the ordinary law, whether administrative, rule-making or disciplinary, or that they employed processes of a public authority, like professional associations (see Chassagnou, para. 101).
The Court concluded that to “compel a person by law to join an association such that it is fundamentally contrary his own convictions to be a member of it, and to oblige him, on account of his membership of that association to transfer his rights over the land he owns so that the association in question can attain objectives of which he disapproves, goes beyond what is necessary to ensure that a fair balance is struck between conflicting interests and cannot be considered proportionate to the aim pursued” (para. 117). Those findings were confirmed, as recently as in 2007, in Schneider.
I see no reason to arrive at different conclusions in the case of Herrmann v. Germany. I also ask myself whether - if correct the conclusion on the public nature of the associations is also capable of serving as a basis of the majority’s view that “it is not necessary to determine whether the complaint [that the applicant’s obligatory adherence to the hunting associations deprived him of the possibility to act in accordance with his convictions] falls to be examined under Article 9 of the Convention, as it considers that any interference with the applicant’s rights is justified under paragraph 2 of Article 9 as being necessary in a democratic society in the interests of public safety and for the protection of the rights of others.
In particular, I wonder whether mandatory membership of public law institutions aggravates the compulsion an individual suffers when being required to engage in activities contrary to his views. Although mentioned in the views of the Commission, the Court and the Committee of Ministers in the earlier cases of Chassagnou and Schneider came to no findings as to the right to convictions. Regrettably, the brief reasons offered for the majority’s conclusion in the present case provide insufficiently detailed answers to the questions of applicability and respect to the rights under Article 9 of the Convention in the present case.”
(see SEPARATE DISSENTING OPINION OF JUDGE KALAYDJIEVA)
3.
These great differences of interpretation of the Convention by the judges constitute a serious question affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention.
4.
These great differences of interpretation of the Convention by the judges require a decision of the Grand Chamber.
C.
The case also raises a serious issue of general importance within the meaning of Article 43 of the Convention.
I.
This case affects a large number of landowners in Germany.
II.
1.
Other applicants have brought the same proceedings before German Administrative Courts.
2.
Other applicants have brought the same proceedings before the Bavarian Administrative Court of Appeal (nos. 19 BV 09.2, 19 BV 09.3).
3.
Another applicant has brought the same proceeding before the Federal Constitutional Court (no. 1 BvR 1795/08).
III.
1.
All these procedures have been suspended pending the final decision of the Court.
2
Sufficient legal certainty will only occur after the decision of the Grand Chamber.
3.
Otherwise, the other German applicants will bring the same proceedings before the Court again in the near future.
4.
The general importance and the necessary of legal certainty require a decision of the Grand Chamber.
D.
I.
Violation of Article 1 of Protocol No. 1 of the Convention
In the case Herrmann v. Germany, the Chamber has ruled that the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property do not constitute a violation of Article 1 of Protocol No. 1 of the Convention. The German applicant, as well as the judges Lorenzen, Berro-Lefèvre and Kalaydjieva, do not share the Chamber’s opinion that there has been no violation of Article 1 of Protocol No. 1 of the Convention. The applicant, as well as the judges Lorenzen, Berro-Lefèvre and Kalaydjieva, cannot see why the interpretation of the Convention in France, Luxembourg and Germany should not be the same.
The juridical facts and the legal effects are identical in all these cases.
The German applicant does not share the Chamber’s arguments demonstrating the existence of several points of divergence with the situations which, in the past, gave rise to the Chassagnou and Others v. France and Schneider v. Luxembourg judgments, in which violations of the Convention almost unanimously were found.
There are no serious points of divergence:
1.
The Court has considered the Government’s submission that the specific situation in Germany as one of the most densely populated areas in Central Europe made it necessary to allow area-wide hunting on all suitable premises (see § 50 of the judgment).
This differentiation cannot be convincing:
a)
It is already impossible for practical reasons that the federal territory may be hunted on all suitable premises.
aa)
There are a total number of 358,000 hunters in Germany (see http://www.jagdonline.de/datenfakten/zahlenzurjagd/?meta_id=246).
bb)
That means that only 0.46 percent of the population is hunting (see http://www.jagdonline.de/datenfakten/zahlenzurjagd/?meta_id=246).
cc)
In Germany, hunting is a leisure activity or sport (see § 49 of the judgment). Therefore, the majority of hunters work and only occasionally go hunting.
dd)
For this reason, it is completely impossible that the federal territory may be hunted on all suitable premises.
b)
Compared to Luxembourg, France or other Member States, there is no specific situation in Germany, as one of the most densely populated areas in Central Europe, which makes it necessary to allow area-wide hunting on all suitable premises. There is also even less a specific situation in Germany as one of the most densely populated areas in Central Europe, which makes the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property necessary.
aa)
In Germany, the population density per square kilometer is 230 inhabitants.
bb)
In many Federal States (Länder), the population density per square kilometer is far below this figure (for example in Bavaria 177 inhabitants/km2, Brandenburg 86 inhabitants/ km2, Mecklenburg-Western Pomerania 72 inhabitants/km2, Lower Saxony 167 inhabitants/km⊃2;, Rhineland-Palatinate 203 inhabitants/km2, Saxony-Anha1t 116 inhabitants/ km2,, Schleswig-Holstein 179 inhabitants/km2 and Thuringia 140 inhabitants/km2 (cf. Der Fischer Weltalmanach [The Fischer World Almanac] 2011, pages 117 et seq. = Source: Federal Office of Statistics 2010).
cc)
The population density of the state of Rhineland-Palatinate is almost identical with 203 inhabitants per km2 to that of Luxembourg of 189 inhabitants per km⊃2; (cf. Der Fischer Weltalmanach 2011, page 317). As a result, the permissibility of a compulsory membership of the applicant in a hunting association in Germany cannot be given grounds with a population density which deviated from Luxembourg (against § 50 of the judgment).
dd)
The average value of 230 inhabitants per km⊃2; only comes about in Germany in that the Federal States of Berlin, Free Hanseatic City of Bremen as well as the Free Hanseatic City of Hamburg which are small in area have approx. 7.2 % of the total population of Germany living on an area of only a total of 0.57 % of the total area of Germany (Der Fischer Weltalmanach 2011, page 124 = Source: Federal Office of Statistics 2010).
ee)
In comparison, Belgium has a population density of 329 inhabitants per km⊃2; and The Netherlands has a population density of 396 inhabitants per km⊃2; (Der Fischer Weltalmanach 2011, pages 76 et seq. and pages 351 et seq.). There are no hunting associations either in Belgium or in The Netherlands. On the contrary: in The Netherlands, there has been an almost complete prohibition of hunting since many years. In the countries neighboring Germany (Belgium, Denmark, Switzerland [in individual Cantons there, also an absolute prohibition of hunting exists]), there are also no hunting associations. The same applies for Finland, Great Britain, Portugal, Spain and other Member States.
ff)
These actual conditions prove clearly and unequivocally that hunting associations are not necessary at all for the preservation of a species-rich game stock and for the avoidance of game damage. In all of the afore-mentioned countries, no problems with the wild animals occurred without the existence of hunting associations.
gg)
This cannot be different in Germany.
hh)
Added hereto is also the further fact: the real property parcels owned by the applicant are located on the road route to Luxembourg only approx. 2 km and at a linear distance of approx. 700 meters distance. In the entire area, i.e. both in Luxembourg as well as also in Germany, there are the same geographical and topographical conditions. The flora and fauna is also identical. A plan (Attachment GC No. 1) is attached as proof hereof on which the location of the real property parcels of the applicant are marked with an arrow and from which, with the scale of 1:50,000, the linear distance to the border of Luxembourg at most 700 meters is calculated. In Luxembourg, the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed to be violations of the Convention (Schneider v. Luxembourg, no. 2113/04, 10 July 2007).
ii)
In comparison with Luxembourg, how could the population density in Germany lead to a “specific situation” (see § 50 of the judgment) and the necessary of automatic adherence to a hunter’s association including all plots under 75 hectares of surface (plots of at least 75 hectares of surface are not regrouped) and of the obligation of the German landowners to allow the exercise of hunting rights on their property? There is no answer!
jj)
And by the way: The Netherlands is one of the most densely populated areas in all of Europe. This Member State does not have an automatic adherence to a hunter’s association and no obligation to allow the exercise of hunting rights on the property. In most parts of the country of The Netherlands, hunting has been abolished or highly restricted which had not been contested by the German Government. The vast hunting ban in The Netherlands leads to the fact that Dutch hunters come to Germany to hunt on the lands of German property owners. That should not be the case.
c)
To make a differentiation on this point does not make any sense.
2.
The Court has also considered the Government’s submission that “the German law applies nationwide. In this respect, the situation in Germany differs from the situation found in France, where only 29 of the 93 départements concerned had been made subject to the regime of compulsory adherence to hunting associations (see Chassagnou, cited above, § 84).” (see § 50 of the judgment)
Even this differentiation cannot be convincing:
a)
The situation in Germany does not differ from the situation found in Luxembourg where the law also applies nationwide (see Schneider v. Luxembourg, cited above § 38) and where the automatic adherence to a hunter’s association and their obligation to allow the exercise of hunting rights on the property have been deemed to be violations of the Convention without a dissenting vote (Schneider v. Luxembourg, no. 2113/04, 10 July 2007).
b)
Moreover, since the reform of the Federal system in Germany in 2006, the Federal States (Länder) were free to regulate the practice of the hunting on their own motion (see § 30 of the judgment). This also shows that the German federal legislature has - since the reform of the federal system in Germany - no influence on the system of area-wide hunting in Germany. The Federal States were always in a position to abolish the automatic adherence to a hunter’s association and their obligation to allow the exercise of hunting rights.
aa)
Article 72 of the German Basic Law (Grundgesetz, GG) provides:
Article 72
[Concurrent legislative powers]
(1) On matters within the concurrent legislative power, the Federal States shall have power to legislate so long as and to the extent that the Federation has not exercised its legislative power by enacting a law.
(2) The Federation shall have the right to legislate on matters falling within clauses 4, 7, 11, 13, 15, 19a, 20, 22, 25 and 26 of paragraph (1) of Article 74, if and to the extent that the establishment of equivalent living conditions throughout the federal territory or the maintenance of legal or economic unity renders federal regulation necessary in the national interest.
(3) If the Federation has made use of its power to legislate, the Federal States may enact laws at variance with this legislation with respect to:
1. hunting (except for the law on hunting licenses);
2. protection of nature and landscape management (except for the general principles governing the protection of nature, the law on protection of plant and animal species or the law on protection of marine life);
3. land distribution;
4. regional planning;
5. management of water resources (except for regulations related to materials or facilities);
6. admission to institutions of higher education and requirements for graduation in such institutions.
Federal laws on these matters shall enter into force no earlier than six months following their promulgation unless otherwise provided with the consent of the Federal Council (Bundesrat). As for the relationship between federal law and law of the Federal States, the latest law enacted shall take precedence with respect to matters within the scope of the first sentence.
(4) A federal law may provide that federal legislation that is no longer necessary within the meaning of paragraph (2) of this Article may be superseded by State law.
bb)
Article 72 § 3 no. 1 of the German Basic Law gives the exceptions from the mandatory principle of area-wide hunting in the German legislation because the Federal States can deviate from these rules related to the hunting rights. This indicates that the German federal legislature does not proceed from the need of area-wide hunting in Germany as a whole
.
cc)
In this context, it is not necessary for this case that the Federal States have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient that the relevant instruments exist (see Article 72 § 3 no. 1 of the German Basic Law) and denote a continuous evolution in the norms and principles of the domestic law, which shows, in a precise area, that there is different ground in modern societies.
c)
To make a differentiation on this point does not make any sense.
3.
The Court has also considered “that the exceptions to the rule of area-wide hunting are sufficiently motivated by general and hunting-related interests and thus do not call into question the principle of area-wide hunting as such. In this respect, the instant case can be clearly distinguished from the situation examined by the Court in the French and Luxembourg cases, in which the Court found exceptions from the application of the principle of area-wide hunting which were not sufficiently motivated and which, according to the Court’s assessment, proved that it was not absolutely necessary to subject the whole rural area to the exercise of these rights (Chassagnou, cited above, § 84, and Schneider, cited above, § 50).” (see § 54 of the judgment)
a)
In Germany, we also found exceptions of the principle of area-wide hunting which were not sufficiently motivated and which proved that it was not absolutely necessary to subject the whole rural area to the exercise of the hunting rights.
b)
In this matter, the Chamber itself notes “that the German system of area-wide hunting is subject to the following exceptions: Under section 6 sentence 1 of the Federal Hunting Law, the hunt is stayed on areas which do not belong to a hunting district and in enclosed areas. Furthermore, the hunting association, with the consent of the hunting authority, can decide to the hunt (section 10 § 2 sentence 2). Section 20 of the Federal Hunting Law prohibits the exercise of the hunt in places where public peace, order or security would be otherwise disturbed or human life jeopardised. Furthermore special regulations apply to the exercise of the hunt in nature and wildlife reserves (section 20 § 2).” (see § 52 of the judgment)
aa)
Under section 6, sentence 1 of the Federal Hunting Law, the hunt is not exercised in areas which did not adhere to a hunting district, as, for example, in enclaves within a private hunting district. These enclaves are necessarily a result of the statutory system and were not sufficiently motivated which proves that it is not absolutely necessary to subject the whole rural area to the exercise of the hunting rights.
bb)
Under section 20 § 1 of the Federal Hunting Law, the hunt should not be exercised in areas where public peace, order or security would be otherwise disturbed or human life jeopardised.
cc)
Within the meaning of section 20 § 2 of the Federal Hunting Law, the Federal States also were entitled to create areas which were not subjected to hunting rights and had done so, in particular, by creating nature reserves in which the exercise of the hunt was prohibited or only permitted under very exceptional circumstances.
For example:
(1)
The exercise of the hunting rights is prohibited in the “National Park Western Pomerania Coastal Landscape” (Nationalpark Vorpommersche Boddenlandschaft) at the “Baltic Sea” (see written opinion of the applicant from 10.04.2010, pages 3/4).
(2)
The exercise of the hunting rights is prohibited in the “National Park Hainich” (Nationalpark Hainich) which hunting-free zone covers 600 hectares (see written opinion of the applicant from 10.04.2010, pages 3/4).
(3)
The exercise of the hunting rights is prohibited in the “National Park Bavarian Forest” (Nationalpark Bayerischer Wald) which hunting-free zone covers 150 square miles (see written opinion of the applicant from 10.04.2010, pages 3/4).
(4)
In the “National Part Müritz” (Nationalpark Müritz), there are four hunting-free zones with a total area of 2,500 hectares (see written opinion of the applicant from 10.04.2010, pages 3/4).
(5)
The same applies to the area around the “Federsee” and for example in Schleswig-Holstein for the nature reserves “Coastal Landscape Near Schmoel” (Strandseelandschaft bei Schmoel), “Beltringharder Koog”, “Grüne Insel mit Eiderwatt” and “Oldensworter Vorland” (see written opinion of the applicant from 10.04.2010, pages 3/4).
(6)
The same applies to the area of the “Foundation Nature Conservation Schleswig-Holstein” (Stiftung Naturschutz Schleswig-Holstein), where hunting is not allowed. There is also a ban on hunting in the conservation area “Kronswarder” and south-eastern part of the “Großer Binnensee”. This natural reserve reaches 100 to 3,000 hectares in size (see written opinion of the applicant from 10.04.2010, pages 3/4).
(7)
Even the hunters support wildlife-resting areas up to 100 hectares which are not hunted on (German hunting magazine, issue 8/2007): “Quiet zones are one aspect of a modern and humane management of the game stock. And if there really is quiet, the forest-game conflict can with them - at least in some regions - be reduced significantly.” (see written opinion of the applicant from 10.04.2010, pages 3/4).
c)
These exceptions within the meaning of section 6 sentence 1 and section 20 § 1 and § 2 of the Federal Hunting Law contradict the submission by the Government of the absolute necessity of area-wide hunting.
d)
The only conclusion that can be reached is that those exceptions (see § 52 of the judgment) show that it is not essential to subject the entirety of the non-urban territory to the exercise of hunting rights (see also JOINT DISSENTING OPINION OF JUDGES LORENZEN, BERRO-LEFÈVRE AND KALAYDJIEVA).
e)
In this context, the Chamber “further takes note of the third party’s submissions (see paragraph 41, above) which had not been contested by the applicant, that these stays of the hunt are of a merely temporary nature and concern less than 0.01 % of the landed property.” (see § 53 of the judgment)
aa)
This submission is a pure hypothesis by the Deutscher Jagdschutzverband e. V. and not a fact. No one knows how large the areas in Germany are on which hunting is not allowed. No statistics exist for this.
bb)
Moreover, as has already been shown above, this number would not be crucial because it is already impossible for practical reasons that the federal territory may be hunted on all suitable premises.
f)
To make a differentiation on this point does not make any sense.
4.
Furthermore, the Chamber judgment observes “that the German regime does not exempt any public or private owners of property which is a priori suitable for the hunt from the obligation to tolerate hunting on their premises. In this respect the situation has to be distinguished from that examined in the Luxembourg case, where the property of the Crown was excluded from adherence to hunting associations (see Schneider, cited above §§ 18 and 50). Even though plots of at least 75 hectares of surface are not regrouped, this does not dispense the owners of these plots from either exercising the hunt themselves or tolerating it on their premises.” (see § 51 of the judgment)
These considerations of the Court are not convincing:
a)
Under Luxembourg’s hunting law, not only the property of the Crown but also all properties having more than 250 hectares were excluded from adherence to hunting associations (Schneider v. Luxembourg, cited above, § 53).
b)
Moreover, the Court has not noted the submissions of the applicant that the owners of land having more than 75 hectares could freely decide which species they wished to hunt and which not. This affects - with one exception (see section 21 of the Federal Hunting Law) - all huntable animal species. The owners of land having more than 75 hectares could even decide to stay the hunt completely and to contest any order to exercise the hunt before the courts. Therefore, there is a significant difference between the exercise of hunting of the owners of their own hunting and the owners of plots having less than 75 hectares, which are automatically transferred to a hunting association, which decides on the lease of the hunting rights and where the owners have no influence on whether and which animals are shot (see § 61 of the judgment).
5.
The Court further notes “that the applicant, under section 10 § 3 of the Federal Hunting Law, has a claim to a share of the profit of the lease which corresponds to the size of his property. Even though the sum the applicant could claim under this provision does not appear to be substantial, the Court notes that the relevant provisions prevent other individuals from a financial profit from the use of the applicant’s land. The Court further observes that the applicant has a claim to be compensated for any damages which might be caused by the exercise of the hunt on his premises.” (see § 55 of the judgment)
Even this differentiation is not convincing:
a)
In Luxembourg, the applicant also has a claim to a share of the profits of the lease which corresponds to the size of his property (see Schneider v. Luxembourg, cited above, § 32).
b)
In Luxembourg, the hunting season is very short and hunting at night is prohibited (see Schneider, cited above, § 32). In contrast, in Germany, the hunt is permitted de facto for certain animal types for the entire year and at night.
c)
However, in Luxembourg, the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed to be a violation of Article 1 of Protocol No. 1 of the Convention - without a dissenting vote (Schneider v. Luxembourg, no. 2113/04, 10 July 2007).
6.
Having regard to the above Court’s considerations which cannot convince at all, the Court notes that the case “Herrmann v. Germany” can be clearly distinguished from the situation examined by the Court in the French and Luxembourg cases in which the Court found exceptions from the application of the principle of the area-wide hunting which were sufficiently motivated and which according to the Court’s assessment, proved that it was not absolutely necessary to subject the whole rural area to the exercise of these rights (see Chassagnou, cited above, § 84 and Schneider, cited above, §
50).” (see § 54 of the judgment)
The Court further considers “Having regard to the wide margin of appreciation afforded to the Contracting States in this area, allowing them to take into account the specific circumstances prevailing in their country, the foregoing considerations are sufficient to enable the Court to conclude that the Government struck a fair balance between the competing interests at stake. There has accordingly been no violation of Article 1 of Protocol 1 of the Convention.” (see § 56 of the judgment)
This result is not legally defensible:
a)
We have seen that the Chamber’s arguments demonstrating the existence of several points of divergence with the situations in Chassagnou and Others v. France and Schneider v. Luxembourg judgments, in which violations of the Convention almost unanimously were found, are not legally defensible.
b)
We have also seen that the judges Lorenzen, Berro-Lefèvre and Kalaydjieva express their common failure to see how the different result of finding no violation of Article 1 of Protocol No.1 to the Convention was reached in the present case.
c)
We have further seen that the Chamber judgment ignored the conclusion accepted in the Chassagnou and Others and Schneider judgments, which was as follows:
“notwithstanding the legitimate aims … the result of the compulsory-transfer system … has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1” (see Chassagnou and Others v. France, cited above, § 85; Schneider v. Luxembourg, cited above § 51).
d)
The Chamber’s conclusion in § 54 of the judgment demonstrates that the Chamber has not considered the conflicting rights. The Chamber has failed to seek a fair balance between protection of the right of property and the requirements of the general interest.
7.
In light of all these considerations, the German applicant considers that this judgment should be reconsidered. It is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents established in previous cases.
II.
Violation of Article 1 of Protocol No.1, Taken in Conjunction with Article 14 of the Convention
In the case Herrmann v. Germany, the Chamber has ruled that the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property are not violations of Article 1 of Protocol No. 1, taken in conjunction with Article 14 of the Convention.
The German applicant does not share the Chamber’s opinion that there has been no violation of Article 1 of Protocol No. 1, taken in conjunction with Article 14 of the Convention:
1.
The Court observes “that under German hunting law, the hunting rights of owners of plots less than 75 hectares in area are automatically transferred to a hunting association, which decides on the lease of the hunting rights, whereas owners of larger plots are allowed to chose whether they wish to exercise the hunt themselves or to lease the hunting rights. However, contrary to the situation examined by the Court in the cases of Chassagnou and Schneider (cited above, § 92 and 50 respectively), owners of larger plots were not allowed to stay the hunt completely, but had to fulfil the same obligations regarding the management of game stock as the hunting associations.” (see § 69 of the judgment)
2.
It is absolutely wrong that the owner of larger plots had to fulfil the same obligations regarding the management of game stock as the owner in hunting associations. There is a significant difference between individuals who are owners of their own hunting districts and individuals who are owners of plots having less than 75 hectares, which are automatically transferred to a hunting association from where the hunting right is being transferred to one or more hunters who decide whether and which animals are shot.
a)
The applicant has submitted that the owners of land having more than 75 hectares in area could freely decide whether and which animals are shot (see § 62 of the judgment).
b)
The applicant has also submitted that the owners of land having more than 75 hectares in area could even decide to refrain from all hunting activities and to contest any order to exercise the hunt before the courts (see § 61 of the judgment).
c)
The applicant has further submitted that the owners of land having more than 75 hectares in area could also decide to hunt in a way which was compatible with their ethical convictions, for example, by avoiding hunting during winter, night or breeding times and by choosing their hunting method (see § 61 of the judgment).
d)
The applicant has further submitted that owners of private hunting districts neither have to tolerate the erection of hunting appliances nor to tolerate the presence of strangers on their premises. Furthermore, the landowner was deprived of the possibility of observing and taking care of the wildlife in its natural habitat (see § 62 of the judgment).
e)
The applicant has also pointed out that owners of plots in areas which did not adhere to a hunting district, as, for example, in enclaves within a private hunting district, which fell within the ambit of section 6 sentence 1 of the Federal Hunting Law, do not have to tolerate the hunt on their properties (see § 52 of the judgment).
f)
Even the Court considers that a difference in treatment between the owners of smaller plots and those of larger plots exists in that the latter remain free to choose in which way to fulfil their obligation under the hunting laws, whereas the former merely retain the right to take part in the decisions taken by the hunting association (see § 70 of the judgment).
3.
However, the Court considers, inexplicably, that this difference in treatment is sufficiently justified by the (alleged) reasons put forward by the Government in respect of the alleged violation of Article 1 of Protocol No. 1, in particular the necessity to pool smaller plots in order to allow for area-wide hunting and thus to assure an effective management of the game stock. As regards the treatment of owners of areas which do not belong to a hunting district and which are not subject to the hunt (section 6 § 1 sentence 1 of the Federal Hunting Law), the Court, having regard to its findings under Article 1 of Protocol No. 1 (see paragraph 52, above), considers that this exception from the general adherence to hunting associations is owed to the specific circumstances of the respective plot, which justifies a difference in treatment. It follows that there has been no violation of Article 14 of the Convention, taken in conjunction with Article 1 of Protocol No. l (see § 70 of the judgment).
4.
This result is not legally defensible.
E.
Violation of Article 11 of the Convention
I.
Insofar as the Chamber denied a violation of Article 11 of the Convention (see §§ 71 et seq. of the judgment), the case Herrmann v. Germany raises some serious questions affecting the interpretation or application of the Convention.
In the present case, the question is raised of the interpretation and application of the Convention in view of the negative freedom of association protected by Article 11 of the Convention. The questions to be answered hereby are serious and of general importance for the area of application of Article 11 of the Convention for the area of compulsory memberships mandated by law.
II.
The applicant, as well as the judge Kalaydjieva, do not share the Chamber’s opinion that there has been no violation of Article 11 of the Convention:
1.
In the opinion of the Court, Article 11 of the Convention is not violated because the hunting associations in the state of Rhineland-Palatinate are established by law in the form of public law associations. The Court has considered that “the hunting associations are sufficiently integrated into State structures in order to qualify them as public law institutions” (see § 78 of the judgment). Therefore, the Court has arrived at the conclusion that Article 11 does not apply to the circumstances (see § 79 of the judgment).
2.
Similar objections of the respondent Government in Chassagnou and Others v. France did not prevent the Grand Chamber from finding that the fact that the prefect supervised the way the associations operated was not sufficient to support the contention that they remained integrated within the structures of the State. The Grand Chamber also found that it could not be maintained that the associations enjoyed prerogatives outside the orbit of the ordinary law, whether administrative, rule-making or disciplinary, or that they employed processes of a public authority, like professional associations (see Chassagnou and Others v. France, cited above, § 101).
3.
In this connection, it must be remembered that in the case Schneider v. Luxembourg the Court deemed the hunting associations there not to be public law associations even though the legal bases for the compulsory memberships of the applicants in the hunting associations there were also classified as being public law (see Schneider v. Luxembourg, cited above, §§ 80 et seq.).
4.
The essence of the hunting associations in Germany is limited just as in France and Luxembourg in that the hunting right entitled to landowners is transferred to the hunting associations so that they can transfer the hunting right then by means of private law lease contract to one or more hunters. This has the consequence that a person who acquires real property in the district of a hunting association is bound to the existing private law hunting lease contract in the same way as every private owner within the framework of the private law pursuant to §§ 566, 581 of the German Civil Code (
Bürgerliches Gesetzbuch, BGB). No public law relationships of any kind exist between the real property owner and the leaseholder of the hunting right. This illustrates that the hunting association in Germany is only designated by the legislator to be a “public law body” in order to be able to dispose over the private rights of the landowners. Under private law, it is impossible to create hunting associations by way of compulsory form. In private law, there is no obligation to conclude a contract or to be a member of an association ordered by coercion. As a result, in France and Luxembourg, the legal basis for the membership in a hunting association was found in public law. To avoid that the Convention fails to guarantee the same rights in all States, the German hunting association must be assessed in the same way as in France and Luxembourg. Therefore, Article 11 of the Convention applies to German hunting associations.
5.
After the Court recognized that Article 11 of the Convention protects the negative freedom of hunting association (see Chassagnou and Others v. France, cited above, § 102 and Schneider v. Luxembourg, cited above, §§ 80 et seq.), this protection must be extended to all hunting associations in the Member States because the legal consequences of such compulsory membership for the landowners affected hereby (toleration of hunting contrary to his ethical ideology) are the same, regardless of whether the compulsory membership is of a private law or public law nature. This is so because, with the application of Article 11 of the Convention, the concrete case of the affected party is to be taken into account. This forbids a different treatment of the present case in comparison to the judgments in the cases Chassagnou and Others v. France and Schneider v. Luxembourg (both cited above). Article 11 of the Convention must be interpreted und applied in a manner which renders its rights practical and effective, not only theoretical and illusory. The Convention must also be read as a whole, and interpreted in such a way as to promote international consistency and harmony between its various provisions (see Demir and Baycara, cited above, § 66). The Convention was created to ensure that citizens in the Member States are guaranteed the same protection of their human rights. The spirit and purpose of the Convention can only be achieved if the Convention is uniformly interpreted in all Member States with identical statutory or other legal restrictions of their citizens. The national legislation must correspond to the specifications of the Convention and not vice versa. Otherwise, the Member States would have the possibility of undermining the human rights by means of their national legislation. If a State does not want to accept all Articles of the Convention, it can stay away from the Convention, as some States have done.
6.
In view of this background, the serious question is raised regarding the application and interpretation of the Convention which also accords a serious issue of general importance:
“If there is, with a uniform factual situation which has identical effects in each Member State for those affected, a split interpretation of the Convention in the various Member States permitted in order that, in a Member State, an application of Article 11 of the Convention may also then still be denied even though it was already decided by the Court for two Member States of the Convention in a timely manner previously that the compulsory membership of landowners who refuse the hunt of animals due to ethical reasons represents a violation of Article 11 of the Convention.”
The clarification of this serious legal question is an issue of general importance because the legal question pending decision can be detached from the concrete factual situation and transferred to many similarly situated factual situations as well as other Articles of the Convention.
7.
Due to the fact that the guarantees of the Convention must be the same in all Member States, in the present case, as well as with the judgments Chassagnou and Schneider (both cited above), an infringement of the rights of the applicant arising from Article 11 of the Convention is to be affirmed (see also the SEPARATE DISSENTING OPINION OF JUDGE KALAYDJIEVA).
F.
Violation of Article 9 of the Convention
In the opinion of the Court, the applicant could not rely on Article 9 of the Convention because an individual could not rely on his rights under that Article if he was obliged to tolerate actions by third parties which are in the public interest. In any event, any interference with the applicant’s rights under Article 9 had to be regarded as being justified for the reasons already set out above. The Court did not find it necessary to determine whether the applicant's complaint is required to be examined under Article 9 of the Convention as it considers that any interference with the applicant’s rights is justified under paragraph 2 of Article 9 as being necessary in a democratic society in the interest of public safety for the protection of public health and for the protection of the rights of others for the reasons set above (see §§ 86, 87 of the judgment).
In this connection, a serious question affecting the interpretation and application of Article 9 of the Convention is to be decided which, in addition, is an issue of general importance.
I.
Since the Convention is first and foremost a system for the protection of human rights, the Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory. The Convention must also be read as a whole and interpreted in such a way as to promote international consistency and harmony between its various provisions (see, among other authorities, Demir and Baykara, cited above, § 66).
In this context, it will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of Member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies (see, mutatis mutandis, Demir and Baykara, cited above, § 86).
1.
Included in the international law to be observed with the interpretation and application of the Convention is the Charter of Fundamental Rights of the European Union (hereinafter referred to as the EU Charter). The applicant is accorded the following rights in Article 10 § 1 of the EU Charter:
“Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.”
This formulation is congruent with that of Article 10 § 1 of the Convention. In this respect, the Grand Chamber determined that the refusal to hunt due to ethical reasons and the convictions resulting therefrom in this context achieve a certain level of decisiveness, coherence and importance and, therefore, deserve respect in a democratic society (see Chassagnou, cited above, § 114).
2.
Respect for the lives of animals and the resulting requirement for ethical persons not to kill animals is a component part of various religions. For example, in India, more than 600,000 Bishnoi have lived for 500 years in peace with all animals. The killing of animals of all kinds is strictly forbidden according to their religion and hungry or injured animals are taken care of. In addition, poachers who intrude from other areas in the provinces of the Bishnoi are pursued and fought in order to protect the animals. Such veneration of the lives of animals is also the basis of the ethic of vegans, vegetarians and other people. This right to religion and belief expressly granted to the applicant by Article 10 EU Charter is made absolutely impossible for the applicant due to his compulsory membership in a hunting association even on his private property. As a result, the core area of Article 10 EU Charter is affected thereby because the applicant must tolerate the killing of animals by completely unknown third parties on his property and may not even interfere to help the animals in accordance with his ethical convictions in order to save their lives.
3.
The EU fundamental right of the applicant arising from Article 10 EU Charter can only be limited, according to Art. 52, para. 1 EU Charter in certain, narrowly determined exceptional cases. In this context, it is stated in Art 52, para. 1 EU Charter:
“Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.”
These prerequisites are not met with regard to the compulsory membership of the applicant in a hunting association. This is proved by the actual relationships in the remaining EU States. The dissenting opinion of the Court that the specific situation in Germany as one of the most densely populated areas in Central Europe made it necessary to allow area-wide hunting on all suitable premises (see § 50 of the judgment) is clearly contradicted by the reality with regard to the hunting law situation in the neighbor States of Germany (see above D.).
4.
Under these circumstances, there is a violation of Art. 9 and Art. 14 of the Convention if landowners in Luxembourg may exercise their freedom of thought, conscience and religion as well as their beliefs without restriction for the protection of animals on their land while, only a few hundred meters away, the applicant's human rights and EU fundamental rights for the unhindered exercise of his freedom of religion and belief in the form of customs and rites for the protection of animals on his private property in Germany, as a result of his compulsory membership in a hunting association, is made completely impossible and is even prohibited to him.
II.
As a result, the following serious question affecting the interpretation and application of the Convention is raised which furthermore is also an issue of general importance for all Member States of the Convention:
“Are the barriers of the freedom of thought, conscience, beliefs and religion guaranteed in Article 9 § 1 of the Convention still to be determined exclusively pursuant to Article 9 of the Convention after the entering into force of the EU Charter or can, in the States in which the EU Charter has application, the freedom of thought, conscience, beliefs and religion guaranteed in Article 9 § 1 of the Convention only still be limited subject to the conditions of Article 52 § 1 EU Charter?”
1.
Compared to Article 9 § 2 of the Convention, according to Article 52 § 1 EU Charter, far stricter requirements are set up with regard to the permissibility of a limitation of the freedom of thought, conscience, beliefs and religion. In detail, according to Article 52 § 1 EU Charter, the following applies:
a)
The essential content and core area of Article 10 § 1 EU Charter which is identical to Article 9 § 1 of the Convention may not be limited. This guarantee creates therefore an absolutely protected core area and is not affected by the principle of proportionality because the guarantee of essential content corresponds in the meantime to a common European constitutional principle.
b)
In addition, limitations must not only be suitable abstractly but instead, with observance of the principle of proportionality, suitable in fact to correspond with the interests of the common good or the rights and freedoms of others.
2.
The Court decided in the cases in France and Luxembourg that, for factual reasons and from the viewpoint of proportionality, it is not justified to order, as protection of the interest of common good in a proper exercise of hunting, nature reserve and maintenance of a species-rich game stock as well as the protection of the rights and freedoms of third parties, to order by law compulsory membership in hunting associations of landowners who refuse to hunt due to ethical grounds (see Chassagnou and Others v. France, cited above, §§ 80, 85 and 112; Schneider v. Luxembourg, cited above, §§ 51, 78 et seq. and 82).
3.
For the reasons presented above and the reasons to be discussed still further below, this cannot be different in Germany. In the case that one would deem such to be permissible as with the Court in the present case pursuant to Article 9 § 2 of the Convention, this does not apply any longer for Art. 52 § 1 EU Charter - as established. This causes an infringement of the rights of the applicant arising from Article 9 § 1 of the Convention.
a)
This is the case because Article 10 § 1 EU Charter provides a right of defense against State interference and obligates the State to create legal certainties if the fundamental right of the applicant arising from Article 10 § 1 EU Charter - as is the present case: protection of animals by the applicant on his private property - cannot be effectively exercised.
b)
In this context, the exercise forms listed in Article 10 § 1 EU Charter are not exclusive. Rather, Article 10 § 1 EU Charter grants every person the right to make his decisions originating from an internal obligation which can also be of a non-religious nature, to represent such externally and to live thereby accordingly (forum externum).
c)
This is made completely impossible for the applicant with regard to the exercise of an ethical animal protection on his private property by compulsory membership in a hunting association and, thereby, is in violation of the Convention.
4.
In addition hereto is the fact that animal protection was also included in the German Constitution as a State goal in 2002.
a)
In contrast, the protection of the “natural basis of life" was already made applicable law in 1994 in Article 20a of the German Basic Law. The term “natural basis of life" within the meaning of Article 20a of the German Basic Law is the entire natural environment of people. Included are the environmental mediums of water, air and soil. Furthermore, the animals and microorganisms in their habitats found in the environment are protected hereby.
b)
Due to the fact that, in the subsequent time period, it was revealed that within the framework of the “natural basis of life" the animals were only largely inadequately protected, animal protection of such was expressly made a State goal in 2002 by means of a constitutional amendment. In this way, the life of each single animal should be protected (Bundestag-Drucksache [Lower House of German Parliament Printed Matter] 14/8860, page 3). The ethical animal protection obtained constitutional status therewith and is, as a consequence thereof, classified on a par equally with the structure principles of the German Constitution in Art. 20 of the German Basic Law (democracy, social and federal state). Previously, animal protection was categorized by the Federal Constitutional Court already as an important issue of the common good (BVerfGE 36, 47, 60).
c)
After animal protection obtained constitutional status, animal protection represents since 2002 a “paramount important common property”. In this context, animal protection is accorded priority before the “natural basis of life” within the meaning of Art. 20a of the German Basic Law. This follows from the general legal principle “Lex posterior derogat priori”. This is the case because the inclusion of animal protection as a State goal provision occurs because animal protection within the framework of the “natural basis of life” named in Article 20a of the German Basic Law applies only extremely imperfectly and therefore an express constitutional amendment by the entire German population was mandatorily deemed to be necessary. The legislator was called upon by the people, i.e. the actual owners of the authority of the State according to Article 20, para. 2 of the German Constitution to effectively and continually work against adverse effects of animals by private persons and by the State.
d)
The applicant wishes to realize this State goal provision on his property in that the applicant and the animals found there “be left in peace by the hunters”.
This is not contradicted by any rights or freedoms of third parties. According to Article 14 § 2 of the German Basic Law, the use of property should also serve the public good. At the latest since the animal protection was included as a State goal provision in the German Constitution in 2002, animal protection represents a “paramount important common property”. With a view thereto, the owners of property used as agricultural and forestry property, due to the social obligation pursuant to Article 14 § 2 of the German Basic Law, the owners have the obligation to a certain extent to tolerate that the wild animals can meet their food requirements there. The aims of the German Federal Hunting Law (Bundesjagdgesetz) - avoidance of damage caused by game are, due to the higher ranking constitutional law in favor of game, to a great extent limited by the German legislator itself.
e)
Therefore, the applicant only wants to realize the protection of the individual animals on his real property expressly given Constitutional status in the German Constitution as a State goal provision. This right must be granted to him without reservation according to Article 9 of the Convention.
f)
This applies even more according to a press publication of the Naturschutzbund Deutschland (Nature Conservation Association Germany, NABU) which is by no means against hunting. It reported that alone in the Federal State of Baden-Wuerttemberg annually approx. 12,000 magpies and 30,000 carrion crows “were senselessly shot by hunters”: “This reflects respectively around 15 % of the natural stock. Magpies and carrion crows do not cause any damage in nature. In farming, serious damage is seldom and does not justify any nationwide killing. (…) Nothing in nature is useless. Every animal is a valuable component of nature. Therefore, there is no creature in the world with which we can do without. Biological variety as a whole is essential to survival for us – and therewith every individual type, every individual little mosaic stone of the total picture. As a result, every nature lover must fight against categorizing animals into groups of “beneficial animals” and “pests”. As all other animals, the raven birds also have their place in nature. When raven birds eat beetles and mice, forest rangers and farmers are happy. When crows eat the carcasses of animals, they curb illnesses. When magpies build many nests, the hobbies and long-eared owls are happy because they can breed as “subsequent tenants” in the vacated nests. They really rely on the hard-working magpies because they do not build any nests themselves and must rely on their building enthusiastic colleagues.
Summary: raven birds are anything but useless! This is why it is one of NABU's causes:
- To maintain the living variety in nature and no longer to categorize plants and animals into “beneficial animals” and “pests”.
- This is the case because every animal and plant type has its place and its role in this world.
- While in the past, the wolf, lynx, owl and sea eagle were killed as alleged damaging predators and wiped out, today this concerns as well cormorants and raven birds. The reasons are always the same.” (see Attachment GK No. 2)
g)
This also applies according to long-term scientific comparisons among wild boar populations facing contrasted hunting pressures indicate that a high demographic contribution of juveniles is a likely consequence of a high hunting pressure rather than a species-specific life-history pattern characterizing wild boar (see Servanty et alii, Pulsed resources and climate-induced variation in the reproductive traits of wild boar under high hunting pressure, Source: Journal of Animal Ecology 2009, 78, 1278–1290). However, the hunters exercise a high hunting pressure against the wild boars.
5.
It cannot be reasonably expected of the applicant to accept such unnecessary exercises of strangers on his property which contradicts his ethical philosophy of life worthy of protection because otherwise interference in the core area of the freedom of thought, conscience, ideology and religion would occur with actual unsuitable means. This is not permissible pursuant to Article 9 of the Convention and Article 52 § 1 EU Charter.
G.
Violation of Article 6 § 1 of the Convention
I.
The Chamber did not take into consideration in favor of the applicant that hunting is not included in the guaranteed rights and freedoms of the Convention (see Chassagnou and Others, cited above, § 113). This was also one of the main arguments of the applicant (Application from 12.02.2007, page 4 e/4 f; written opinion of the applicant from 10.04.2010, pages 38/39).
II.
In addition, the argument stated under § 55 of the judgment that “The Court further notes that the applicant, under section 10 § 3 of the Federal Hunting Law, has a claim to a share of the profit of the lease which corresponds to the size of his property” contradicts the standing case law of the Court. The motivation of the applicant to prohibit hunting on his land for ethical reasons cannot be compensated with a money amount (see Schneider v. Luxembourg, cited above, §§ 23, 49). The viewpoint was also made as a main argument by the applicant is his application (Application 12.02.2007, page 4 a; written opinion of the applicant from 10.04.2010, pages 22/23). In addition, to date the applicant never received any of the lease proceeds and any amount would only be a few cents at best.
III.
The Chamber did not deal with the arguments of the applicant which are material for the decision at all in the grounds of the judgment. A violation of Article 6 § 1 of the Convention is to be seen herein (see Buzescu v. Rumänien, No. 61302/00, judgment 24.05.2005, § 67).
IV.
Furthermore, the Chamber did not consider the standing case law of the Court to the effect that any lease proceeds cannot compensate for the infringement suffered by the applicant of his human rights guaranteed by the Convention (see Schneider v. Luxembourg, cited above, §§ 23, 49). On the contrary, under § 55 of its judgment, the Chamber rejected a violation of rights of the applicant pursuant to Article 1 of the Protocol No. 1 in contradiction of the previously presented case law of the Grand Chamber without providing any grounds. As a result, the judgment is proved to be objectively arbitrary because it exceeded the limit of a reasonable interpretation of Article 1 of the Protocol No. 1 (see Blücher v. Tschechien, No. 58580/00, judgment 11.01.2005, § 56).
V.
In view of this background, a serious question is raised affecting the interpretation or application of the Convention and its Protocols of whether a violation of the Chamber of Article 6 § 1 of the Convention (violation of due process, prohibition of arbitrariness and the principle of a fair hearing) demands that the legal matter be remitted to the Grand Chamber. The answer of this legal position is also an issue of serious importance for all Member States of the Convention because this legal inquiry shall have an effect in all cases in which the Chamber, with a judgment, has violated Article 6 § 1 of the Convention.
Rechtsanwalt
(German Attorney-at-Law)