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FIFTH
SECTION
CASE OF HERRMANN v. GERMANY
(Application
no. 9300/07)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Herrmann v.
Germany,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Rait Maruste,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva,
Ganna
Yudkivska, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 7 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9300/07) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr
Günter Herrmann (“the applicant”), on 12 February
2007.
- The
German Government (“the Government”) were represented by
their Agent, Mrs A. Wittling-Vogel, of the Federal Ministry of
Justice.
- The
applicant alleged, in particular, that his automatic adherence to a
hunter’s association and his obligation to allow the exercise
of hunting rights on his property violated his rights under Articles
9, 11 and 14 of the Convention and under Article 1 of Protocol no. 1
to the Convention.
- On
18 November 2009 the President of the Fifth Section decided to give
notice of the application and decided to communicate the complaints
to the Government. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
- The
parties replied in writing to each other’s observations. In
addition, third-party comments were received from
Bundesarbeitsgemeinschaft der Jagdgenossenschaften und
Eigenjagdbesitzer (BAGJE), represented by Mr Reh, legal
counsel, and Deutscher Jagdschutz-Verband, e. V.,
represented by Mr Thies, legal counsel, who had been given leave
by the President to intervene in the written procedure (Article 36 §
2 of the Convention and Rule 44 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Stutensee.
- Under
the German Federal Hunting Law (Bundesjagdgesetz), owners of
hunting grounds with a surface of less than 75 hectares are de
jure members of a hunting association (Jagdgenossenschaft),
while owners of bigger plots of land manage their own hunting
district. The applicant owns two landholdings in Rhineland-Palatinate
which are smaller than 75 hectares in a single block. He is thus
an automatic member of a hunting association, in the instant case of
the municipality of Langsur.
- On
14 February 2003 the applicant, who is opposed to hunting on ethical
grounds, filed a request with the hunting authority to terminate his
adherence to the hunting association. The authority rejected his
request on the grounds that his adherence was prescribed by law and
that there was no provision on the termination of adherence.
- The
applicant brought proceedings before the Treves Administrative Court.
Relying in particular on the Court’s judgment in the case of
Chassagnou and Others v. France ([GC] nos. 25088/94, 28331/95
and 28443/95, ECHR 1999 III), he requested the court to
establish that he was not a member of the hunting association of the
municipality of Langsur.
- On
14 January 2004 the administrative court rejected the applicant’s
request. It considered that the Federal Hunting law did not violate
the applicant’s rights. With regard to the Chassagnou-judgment
the administrative court considered that the situation in Germany
differed from the one in France. It observed, in particular, that the
German owners of hunting grounds, by way of their adherence to the
hunting association, were in a position to influence the
decision-making process on how the hunting rights should be
exercised. Furthermore, they had a right to receive a share of the
profits derived from the exploitation of the hunting rights. All
owners of plots which were too small to allow a proper management of
hunting rights adhered to a hunting association. The court also
considered that the hunting associations did not only serve the
leisure interests of those who exercised the hunting rights, but
imposed certain specific obligations on them, which served the
general interest, in particular the duty to manage the game stock
with the aim of maintaining varied and healthy game populations and
to avoid damages caused by wild game. They were furthermore obliged
to comply with specific quotas set by the administration for the
hunting of game. These duties applied in the same way to the owners
of hunting grounds more the 75 hectares of area, notwithstanding the
fact that these bigger plots were not regrouped in hunting
associations.
- On
13 July 2004 and 14 April 2005 the Rhineland-Palatinate
Administrative Court of Appeal and the Federal Administrative Court
rejected the applicant’s appeals on the same grounds as the
administrative court.
- On
13 December 2006 the Federal Constitutional Court (1 BvR 2084/05)
refused to admit the applicant’s constitutional complaint for
adjudication. It noted, at the outset, that the provisions of the
Federal Hunting Law did not violate the applicant’s right to
the peaceful enjoyment of his property, but defined and limited the
exercise of this right in a proportionate way. The relevant
provisions pursued legitimate aims, were necessary and did not impose
an excessive burden on the landowners.
- When
defining the content and the limits of property rights, the
legislator had to weigh the proprietors’ legitimate interests
against the general interest. He had, in particular, to respect the
principles of proportionality and of equal treatment. The limitations
imposed on the exercise of property rights must not infringe the core
area of the protected right. The margin of appreciation allocated to
the legislator depended on the specific context; the stronger the
social context, the wider the margin of appreciation.
- Applying
these principles to the instant case, the Federal Constitutional
Court considered that the applicant’s obligatory adherence to a
hunting association did not violate his property rights. The
core-area of that right was not infringed. The Federal Hunting Law
pursued legitimate aims and limited the property rights in a
proportionate way. Encompassed in the notion of “management and
protection of the game stock (Hege)”, it had the aim to
preserve the game in a way that was adapted to the rural and cultural
conditions, and to ensure a healthy and varied wildlife. Under the
Federal Hunting Law, game keeping was not only an instrument to
prevent damages caused by wild-life, but also to avoid any impediment
to the agricultural, forestry and fishery exploitation of the land.
These aims served the general interest.
- The
obligatory adherence to a hunting association was an appropriate and
necessary means to achieve these aims. Referring to paragraph 79 of
the above-cited Chassagnou judgment, the Constitutional Court
considered that the Court had acknowledged that it was undoubtedly in
the general interest to avoid unregulated hunting and encourage the
rational management of game stocks. The obligatory adherence to a
hunting association was also a proportionate means. The impact on the
property rights was not particularly serious and did not outweigh the
general interest in a rational management of game stocks.
Furthermore, the Federal Hunting Law endowed every member with the
right to participate in the decision making
process and to receive a share of the profits derived from the lease
of the hunting rights.
- The
Constitutional Court further considered that there was no violation
of the applicant’s freedom of conscience. Referring to
paragraph 114 of the Chassagnou
judgment, it accepted that the applicant’s convictions
attained a certain level of cogency, cohesion and importance and
where therefore worthy of respect in a democratic society.
Accordingly, the Federal Constitutional Court considered that the
applicant’s complaint might fall within the scope of freedom of
conscience, but that there was, in any event, no violation of that
right. The applicant was neither enjoined to exercise the hunt
himself, nor to participate in it or to support it. The fact that he
had to tolerate the exercise of the hunt on his premises did not
result from his own decision, but was the result of the legislator’s
legitimate decision. The right to freedom of conscience did not
encompass the right that the whole legal order was submitted to one’s
own ethical standards. If the legal order distributed the right to
exploit a certain property to several claimholders, the owner’s
conscience did not necessarily outweigh the other claimholders’
constitutional rights. If the applicant’s landholding –
and that of other owners who were opposed to hunting – were
removed from the hunting association because of their convictions,
the whole system of property ownership and of the management of the
game stock would be jeopardised. The right to freedom of conscience
did not outweigh the general interest in the instant case.
- The
Federal Constitutional Court further considered that the applicant’s
complaint did not come within the scope of the right to freedom of
association, because the German hunting associations were of a public
nature. Vested with administrative, rule-making and disciplinary
prerogatives, they remained integrated into State structures. There
was thus no doubt that the association was not simply qualified as
“public” in order to remove it from the scope of Article
11 of the Convention.
- The
Federal Constitutional Court further considered that the applicant’s
right to equal treatment had not been violated. There was an
objective reason which justified drawing a distinction between the
owners of landholdings less than 75 hectares in area and those more
than 75 hectares in area. Contrary to the situation in France,
which had been examined by the Court in the Chassagnou judgment,
the Federal Hunting Law applied to the whole surface of Germany and
was binding on all landowners. The owners of land more than 75
hectares in area had the same duties in game keeping as those
adhering to hunting associations.
- Finally,
the Federal Constitutional Court observed that the administrative
courts had considered the Chassagnou judgment and had
accentuated the differences between the German law and the French Law
as applicable at the relevant time.
II. RELEVANT DOMESTIC LAW
- Article
20a of the Basic Law provides:
“Mindful also of its responsibility toward future
generations, the State shall protect the natural bases of life by
legislation and, in accordance with law and justice, by executive and
judicial action, all within the framework of the constitutional
order.”
Section
1 § 1 of the Federal Hunting Law (Bundesjagdgesetz)
provides that the hunting right encompasses the right to manage and
protect the game stock on a particular area of land, to exercise the
hunt and to take possession of the game. The hunting right is linked
to the duty to manage and protect the game stock (Pflicht zur
Hege).
Under
§ 2 of that section, the management of the game stock is aimed
at maintaining varied and healthy game populations at level
compatible with land care and cultural conditions and at avoiding
game damage.
§
3 distinguishes between the hunting right (Jagdrecht) and the
right to exercise the hunt (Ausübung des Jagdrechts). The
landowner has the hunting right on his premises. The right to
exercise the hunt is regulated by the following provisions:
Section
4 of the Hunting Law provides:
“The hunt may be exercised either on private
hunting districts (section 7) or common hunting districts (section
8).”
Section
6 (enclosed premises, stay of the hunt) reads as follows:
“The hunt is stayed on surfaces, which do not
belong to a hunting district, and on enclosed surfaces (befriedete
Bezirke). A limited exercise of the hunt may be permitted. This
law does not apply to zoological gardens.”
Section
7 provides, inter alia, that plots of at least 75 hectares of
surface which can be exploited on an agricultural, forestry or
fishery level and which belong to one single owner constitute a
private hunting district.
Section
8 provides that all surfaces which do not belong to a private hunting
district constitute a common hunting district if they have an overall
surface of at least 150 hectares.
Section
9 § 1 provides as follows:
“The owners of surfaces belonging to a common
hunting district form a hunting association. Owners of surfaces on
which the hunt must not be exercised do not belong to the hunting
association.”
Section
10 reads as follows:
“(1) The hunting association generally exploits
the hunt by lease-hold. The lease can be limited to the members of
the association(...)
(2) The hunting association is allowed to practice the
hunt on its own account by chartered hunters. With the agreement of
the competent authority, it can decide to stay the hunt (Ruhen der
Jagd ).
(3) The association decides about the use of the net
profit of the hunt. If the association decides not to distribute it
to the owners of hunting grounds according to the surface they own,
each owner who had contested this decision is allowed to claim his
share. ...”
Section
20 provides:
“(1) Hunting is prohibited in areas where the
practice of the hunt would, under the specific circumstances of the
case, disturb public peace, order or security or would endanger human
life.
(2) The practice of the hunt in nature and wildlife
protection areas and in national and wildlife parks is regulated by
the Länder.”
Section
21 provides:
“(1) The shooting of the game is to be regulated
in a way which fully safeguards the legitimate interests of
agriculture, fishery and forestry to be protected from damages caused
by wild game and which takes into account the necessities of nature
protection and landscape conservation. Within these limits, the
regulation of the shooting of the game shall contribute to maintain a
healthy population of all domestic game in adequate numbers and, in
particular, ensure the protection of endangered species.”
Section
7 of the Hunting Law of the Land of Rhineland-Palatinate provides,
inter alia, as follows:
“(1) The Hunting association is a public law
corporation. It is subject to State supervision. The supervision is
exercised by the lower hunting authority...The hunting association
has to issue its own internal statute (Satzung). The internal
statute has to be approved by the supervising authority unless it is
in accordance with a model statute issued by the highest hunting
authority; in this case notice of the statute has to be given to the
lower hunting authority. If the hunting association fails to issue a
statute within one year after the issue of the model statute, the
supervising authority issues an internal statute and publishes
it...at the expense of the association.
...
(4) Cost orders (Umlageforderungen) are to
be executed under the provisions of the law on the execution of
administrative acts. The execution rights are exercised by the
exchequer who executes the claims of the community in which the
association is situated....”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TAKEN
SEPARATELY
- The
applicant complained that the obligation to tolerate the exercise of
hunting rights on his premises violated his right to the peaceful
enjoyment of his possessions as provided in Article 1 of Protocol no.
1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the
applicant
- The
applicant submitted that the limitations imposed on the use of his
land by the Federal Hunting Law were disproportionate. He was even
deprived of the possibility actively to protect the wildlife on his
premises, for example by providing medical care to an injured animal.
- The
German legislator had failed to strike a fair balance between his
interest to enjoy the use of his property and the alleged general
interest in the hunt. As he was the only landowner within the hunting
association who was opposed to the exercise of the hunt, he was
factually unable to prevent the lease of the hunting rights.
- The
circumstances of the case resembled those which had been examined by
the Court in the cases of Chassagnou (cited above) and
Schneider (Schneider v. Luxembourg, no. 2113/04, 10
July 2007). The aims pursued by the German legislator were largely
similar to those which had been pursued in France and Luxembourg. In
their submissions in the Schneider case (cited
above, § 34), the Government had also emphasised that the
hunting law had the primary aim to protect persons and goods,
appropriately to manage the game stock and to preserve the ecological
balance.
- The
fact that he was entitled to a share of the profits deriving from the
lease of the hunt did not in any way compensate his loss, as such
compensation was incompatible with his ethical convictions.
Furthermore, he had never received any payments, which, having regard
to the size of his plots, would, in any event, amount to only a few
cents per year.
- The
concept of the “Hege (management and protection of the
game)” dated back to the third Reich and did not serve
the protection of the game. Recent scientific research had
demonstrated that wild game was able to self regulate
and that excessive hunting even increased the number of certain
species. Road accidents involving wild game were in the majority of
cases caused by the hunt. Furthermore, the exercise of the hunt did
not respect in any way the needs to protect rare and endangered
species. A number of European countries did not have hunting
associations or had even almost completely prohibited hunting without
encountering any damage caused by game stock or other problems
relating to the exercise of the hunt.
- In
Germany, the hunt was factually exercised as a leisure activity. Many
species, such as birds of prey, were hunted without any ecological or
economical necessity. The exercise of the hunt could not be regarded
as having a positive impact on issues of general interest. The
ethical protection of animals was guaranteed by Article 20a of the
German Basic Law, while the right to exercise the hunt was neither
protected by the Basic Law nor by the Convention.
- It
was not true that no surfaces in Germany were exempt from the hunt.
Under section 6 sentence 1 of the Federal Hunting Law, the hunt was
not exercised in areas which did not adhere to a hunting district; as
for example in enclaves within a private hunting district.
Furthermore, under section 10 of the Federal Hunting Law the hunting
authority could authorise a stay of the hunt. The Länder 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. Furthermore, since the reform of the
federal system in Germany in 2006, the Länder were free
to regulate the practice of the hunt on their own motion or even to
abolish hunting altogether.
2. Submissions by the
Government
- The
Government conceded that the obligation to tolerate the hunt on his
premises, which ran counter to the applicant’s convictions,
infringed the applicant’s rights under Article 1 of Protocol
no. 1. It was, however, justified under paragraph 2 of that same
Article as being in the general interest and proportionate to the
aims pursued.
- The
Government emphasised that, under German law, the exercise of the
hunt was not conceived as a leisure activity, but was aimed at
globally assuming responsibility for the game stock, its natural
resources and nature, thereby taking into account agricultural and
forestry interests.
- With
regard to the principle of proportionality, the Government submitted
that the German system struck a fair balance between the protection
of property rights and the general interest. The German hunting law
substantially differed from the situation in France and Luxembourg.
This was evident in the notion of “Hege”, which
transcended the simple management of an orderly hunt and encompassed
a general protection of the game stock both quantitatively and
qualitatively. The hunting right carried with it the obligation to
preserve varied and healthy game stock while at the same time
regulating the number of game in order to prevent game damage on
agricultural and forest areas. A regulation of the quantity of wild
game was particularly important in densely populated Germany, for
example in order to avoid the spreading of animal diseases and to
avoid damage caused by wild game on other premises. It followed that
the hunt not only served ecological interests, but also other general
interests and the protection of other landowners’ properties.
- While
conceding that the applicant disposed of no effective means to avoid
the transfer of the right to exercise the hunt on his premises to the
hunting association, the Government considered that the duty to
tolerate the exercise of the hunt did not impose an excessive burden
on him. Firstly, unlike in France, the applicant received a share of
the profits derived from the lease of the hunting rights. While this
participation in the profits might be unsatisfactory to the
applicant, who was opposed to hunting for ethical reasons, this
compensation had to be taken into account when assessing the
proportionality of the measure. Within the framework of Article 1 of
Protocol no. 1 the Government did not share the concerns expressed by
the Court in the Schneider judgment (see Schneider,
cited above, § 49) that ethical convictions could not be
compensated by monetary awards. The Convention right protected the
enjoyment of one’s property without being subjected to external
limitations. It did not, however, in any form protect ethical
conceptions.
- Secondly,
the Government submitted that the system of hunting associations in
Germany covered all surfaces, including State-owned property, and was
self-consistent. As the wild game did not stop at district borders,
and would retreat into areas which were exempt from hunting, the aims
of the hunting law could only be achieved if the hunt was exercised
on all appropriate surfaces. There were only rare exceptions to this
rule which were all based on overriding, general interests. It was
true that the hunt was stayed under section 1, § 1, first
alternative of the Federal Hunting Law, on those areas which did not
adhere to a hunting district. However, having regard to the wide
definition of hunting districts in sections 7 and 8 of that law, only
few surfaces fell within the scope of that provision. Furthermore,
such surfaces were generally incorporated into other hunting
districts. The hunting authority only granted a stay of the hunt
under section 10 § 2 sentence 2 of the Hunting Law in
exceptional cases and for reasons which related to management and
protection of game stock. Even in nature reserves the exercise of the
hunt was not generally excluded; the regulation of the hunt depended
on the specific conservation purposes. The reform of the federal
system had not changed this situation, as all Länder had
opted for maintaining the system of area-wide hunting.
- Contrary
to the law applicable in Luxembourg, a duty to exercise the hunt also
existed on larger plots. Even though the owners of plots more than 75
hectares of surface did not de jure adhere to a hunting
association, they were obliged to regulate the game stock and thus to
exercise the hunt in the same way as owners of plots belonging to a
common hunting district. If they did not exercise the hunt
themselves, the hunting authority could force them to do so or
perform the task at the owner’s expense.
- It
was not true that those European States which did not have hunting
associations did not suffer from damages caused by game. The natural
system of self-regulation of the wild game had ceased to function in
the densely populated and exploited regions of Central Europe.
- The
Government further submitted that the German hunting law imposed the
duty on persons exercising the hunt to respect the legitimate
interests of the land-owners and held them liable for any damage
caused through the exercise of the hunt. The limitations imposed on
the hunt took into account ethical considerations, for example by
prohibiting the use of certain kinds of ammunition.
- There
was no milder means to achieve the intended aim. A system based on
voluntary participation could not ensure a solution which covered the
whole surface. Furthermore, the obligatory adherence assured that no
concerned person was excluded from the system. It further assured
that the State could effectively control the management and
protection of the game stock.
- The
applicant remained free to take measures to protect wildlife on his
premises. Furthermore, it was appropriate to impose on the person
exercising the hunt the duty to catch, take care and, if necessary,
kill seriously injured game because only a hunter had the necessary
training allowing him to assess the situation and to take the
necessary measures.
3. Submissions by the third
parties
- The
Deutscher Jagdschutzverband e. V. emphasised the high
significance of the outcome of the instant proceedings both for the
entire hunting system and for the hunters’ interests. In order
to be allowed to practice the hunt, hunters had to prove extensive
knowledge in the relevant areas and had to adhere to the highest
ethical standards regarding animal protection and nature
preservation. The specific framework conditions in Germany, in
particular its dense population and the intensive cultivation of its
land, made it extremely difficult to regulate game population.
- The
principle of area-wide hunting was a central element of the
obligation to preserve wildlife. It was essential to hunt area-wide
on all landed areas in order to be able to follow migrating game.
Area-wide hunting was consistently implemented in Germany. Areas
excluded from hunting districts under section 6 § 1 of the
Federal Hunting Law comprised less than 0.01 % of all landed
properties, were only of a temporary nature and compelled hunting
authorities to incorporate them rapidly into neighbouring hunting
districts. Stays of the hunt under section 10 § 2 of the Federal
Hunting Law were subject to a consent by the hunting authority. In
practice, the hunting authority only consented to hunting being
stayed in very rare and exceptional cases, for example in cases in
which the game population of a certain area had been virtually wiped
out as the result of a catastrophe, and only for a limited period of
time. There was currently no known case in which any such application
had been approved by the upper hunting authority of the Federal State
of Rhineland-Palatinate, where the applicant’s premises were
situated.
- If
certain areas were excluded from the hunt, there would inevitably be
considerable concentrations of wild animals on those properties where
hunting was not permitted. This would entail a considerably enhanced
risk of transmission of game diseases and animal epidemics, and
considerable stress situation for the game. A further consequence
would be increased damage caused by wild game on neighbouring land
properties. Fleeing and injured game could not be followed into these
areas with the result of an effective practice of the hunt and giving
relief to suffering animals would become virtually impossible.
Summing up, the third party considered that it would no longer be
possible to carry out the proper regulation of game populations,
resulting in a severe disruption of the biological equilibrium.
Furthermore, hunters would no longer be prepared to assume liability
for damage caused by wild game.
- The
Bundesarbeitsgemeinschaft der Jagdgenossenschaften und
Eigenjagdbesitzer confirmed these submissions and added that
there was a great danger that landowners who were interested in
eluding a membership in a hunting association for completely
different reasons used the ethical objection against the hunt as a
mere pretext.
4. Assessment by the Court
- The
Court notes, at the outset, that the Government did not contest that
the obligation to allow the practice of the hunt on his premises
interfered with the applicant’s right to the peaceful enjoyment
of his property. The Court endorses this assessment.
- It
follows that it has to be determined whether this interference was in
accordance with the second paragraph of Article 1 of Protocol no. 1,
which allows the State to enforce such laws as it deems necessary in
the general interest.
- It
is well-established case-law that the second paragraph of Article 1
of Protocol No. 1 must be construed in the light of the principle
laid down in the first sentence of the Article. Consequently, an
interference must achieve a “fair balance” between the
demands of the general interest of the community and the requirements
of the protection of the individual’s fundamental rights. There
must be a reasonable relationship of proportionality between the
means employed and the aim pursued. In determining whether this
requirement is met, the Court recognises that the State enjoys a wide
margin of appreciation with regard both to choosing the means of
enforcement and to ascertaining whether the consequences of
enforcement are justified in the general interest for the purpose of
achieving the object of the law in question (see Chassagnou,
cited above, § 75).
- The
Court notes, at the outset, that the aim of the impugned provisions
are laid down in Section 1 § 2 of the Federal Hunting Law,
providing that the management of the game stock is aimed at
maintaining varied and healthy game populations at a level compatible
with land care and cultural conditions and at avoiding game damage.
The Court accepts that these aims are in the general interest
(compare Chassagnou, cited above, § 49 and
Schneider, cited above, § 46).
- With
regard to the proportionality of the interference, the Court takes
note of the emphasis the relevant law puts on the maintenance of a
healthy fauna in accordance with the ecological and economic
circumstances. Even though it appears to be true that the hunt is
primarily practiced by individuals during their spare time, the
purpose of the hunting law cannot be reduced to merely enabling
certain individuals to exercise a leisure activity.
- As
regards the necessity of the measure at issue, the Court takes note
of the Government’s submissions 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. The Court further observes 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).
- Furthermore,
the Court 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.
- The
Court 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
stay 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).
- The
Court observes that the stay of the hunt in enclosed areas can be
justified by the fact that wild game cannot move into these areas. As
regards the stay of the hunt in areas which do not belong to a
hunting district, the Court observes that these exception are due to
the specific setting of the premises, for example as enclaves
surrounded by a private hunting district. The Court 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. The Court further observes that
the hunting association cannot freely decide on a stay of the hunt,
but has to obtain the hunting authority’s consent (compare
Schneider, cited above, § 50, for the differing
situation in Luxembourg). According to the uncontested submissions by
the Government, such consent was only given in rare and exceptional
cases, and only for a limited period of time. The Court finally
observes that the exceptions under section 20 of the Federal Hunting
Law lie in the interest of maintaining public order and security
(paragraph 1) and in the interest to afford special protection to
nature reserves (paragraph 2).
- Having
regard to the above considerations, the Court considers 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 (see Chassagnou, cited above, §
84, and Schneider, cited above, § 50).
- 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 drawing 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.
- 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.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1,
TAKEN IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
- The
applicant submitted that the provisions of the Federal Hunting Law
discriminated against him in two ways, one grounded on property and
the other on his ethical convictions. He relied on Article 1 of
Protocol no. 1 taken in conjunction with Article 14 of the
Convention, which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
1. Submissions by the
applicant
- According
to the applicant, the Federal Hunting Law privileged hunters, since
in consideration for their private right to hunt they had been given
the right to hunt on a wider area, whereas non-hunters had lost,
without any compensation or consideration, not only their right of
use but also their freedom of thought and the freedom to manifest
their beliefs by putting their ethics into practice on their own
property. Furthermore, the relevant provisions discriminated against
owners of smaller landholdings, as plots more than 75 hectares of
area were not included in the districts of the hunting associations.
- The
different treatment was disproportionate and was not suited to serve
the general interest. While it was true that the owners of land more
than 75 hectare in area could be obliged to regulate the quantities
of certain game stock, they could otherwise freely decide which
species they wished to hunt and which not. This concerned a large
number of animal species. In Germany, many species of wild life were
hunted without any economic or ecological necessity. They could also
decide to fulfil their shooting quota in a way which was compatible
with their ethical convictions, for example, by avoiding hunting
during breeding times and by choosing their hunting method. They
could even decide to stay the hunt and to contest any order to
exercise the hunt before the courts.
- Furthermore,
owners of private hunting districts did 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 to observe and to take care of the wildlife in its
natural habitat. It followed that the transfer of the right to
exercise the hunt went beyond that which was necessary to prevent
damages caused by wild game.
- The
applicant further considered that the existence of nature reserves
proved that area-wide hunting was not necessary in order to protect
and manage the game stock and prevent damages. Finally, he pointed
out that owners of enclaves, which fell within the ambit of section 6
sentence 1, first alternative, did not have to tolerate the hunt on
their premises. This also constituted a clear violation of Article 14
of the Convention.
2. Submissions by the Government
- The
Government submitted that the applicant had not been treated
differently from any other landowner with respect to his rights under
Article 1 of Protocol no. 1, as the owners of plots more of 75
hectares in area were also obliged to tolerate hunting on their
premises. Even though they retained the right to exercise the hunt,
they were not allowed to turn their plots into hunting-free areas.
The owner of a private hunting ground either had to hunt himself or
to tolerate the hunt. The question whether the owner of a private
hunting district had certain discretion as to how to practice the
hunt was irrelevant with respect to the applicant’s complaint.
- Insofar
as the applicant complained about a discrimination of
hunting-objectors as opposed to hunters, the Government submitted
that in Germany, unlike in France, the membership in a hunting
association did not convey the right to hunt on the whole hunting
district.
- Furthermore,
the owner of a larger plot was not free to choose which species of
wild game to hunt, as the German law contained strict provisions as
to when and which wild game was to be hunted. Under section 21 of the
Federal Hunting Law, the shooting of the game had to be regulated in
order to ensure that a healthy population of all animal species
remained in appropriate number and the legitimate interests of
agriculture, forestry and fishery were safeguarded. Thus, shooting
was not permitted in an arbitrary way, but had to be planned and
exercised in a sustainable way.
- The
erection of hunting appliances such as raised hides served a safe
practice of the hunt in conformity with animal protection. An owner
of a private hunting district who had leased his right to exercise
the hunt had to tolerate the erection of such appliances in the same
way as the owner of a smaller plot. The Government finally submitted
that any unequal treatment was justified for the reasons set out in
connection with the complaint under Article 1 of Protocol no. 1.
3. Assessment by the Court
- The
Court reiterates that a difference in treatment is discriminatory if
it “has no objective and reasonable justification”, that
is if it does not pursue a “legitimate aim” or if there
is not a “reasonable relationship of proportionality between
the means employed and the aim sought to be realised”.
Moreover, the Contracting States enjoy a certain margin of
appreciation in assessing whether and to what extent differences
between otherwise similar situations justify a different treatment
(see, among many other authorities, Chassagnou, cited above, §
91).
- Turning
to the circumstances of the instant case, 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.
- The
Court considers that there exists a difference in treatment between
the owners of smaller plots and those of larger plots 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. The
Court considers, however, that this difference in treatment is
sufficiently justified by the 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 were not subject to the
hunt (section 6 § 1 sentence 1 of
the Federal Hunting Law), the Court, having regard to it 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. 1.
III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
TAKEN SEPARATELY
- The
applicant further complained that his obligatory adherence to a
hunting association violated his rights under Article 11 of the
Convention, which provides:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the
rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on the exercise of these rights by
members of the armed forces, of the police or of the administration
of the State.”
1. Submissions by the
Government
- The
Government submitted that the applicant’s complaint did not
come within the scope of the right to freedom of association, because
the German hunting associations were of a public nature. Under
section 7 § 1 of the Hunting Law of the Land of Rhineland
Palatinate, the hunting associations, by the means of supervision by
the State, were more closely integrated into State structures than
the French or Luxembourg associations. The hunting authority was
vested with extensive rights of control, such as the right to object
against decisions, to order the association to comply with their
legal prerogatives and, should the situation arise, install an
administrator. The supervising authority further had the right to
consult all case-files and to carry out further examinations. Under
specific circumstances, community organs could even serve as
directors of a hunting association.
- Unlike
in France and Luxembourg, hunting associations were vested with
public law prerogatives. They could issue their own internal statutes
and use administrative forms of action such as issuing cost orders by
administrative act. The execution of these orders was governed by
public law.
2. Submissions by the
applicant
- The
applicant submitted that the hunting associations fell within the
ambit of Article 11 of the Convention. They were formed by private
individuals who convened at regular intervals in order to decide on
the lease. If Contracting States were able, at their discretion, by
classifying an association as “public” or
“para-administrative” to remove it from the scope of
Article 11, that would give them such latitude that it might lead to
results incompatible with the object and purpose of the Convention,
which was to protect rights which were not theoretical or illusory,
but practical and effective.
- The
applicant contested that the hunting associations were vested with
any public law prerogatives. They did not employ any public officials
or civil servants allowing them to take measures belonging to the
field of the public law. The supervision exercised by the State was
not sufficient to assume a public law character. Private associations
were also entitled to issue their own internal statues, and all
private associations were subject to State supervision under the Law
of Associations. Furthermore, under the present law, the Länder
were entitled to organise hunting associations in the form of
private associations.
3. Assessment by the Court
- The
Court reiterates that the notion of “association” is to
be interpreted by the Court in an autonomous way; the qualification
given by the Contracting State merely serves as a starting point (see
Schneider, cited above, § 69). Under the case-law of the
Court, elements in determining whether an association is to be
considered as private or public are: whether it was founded by
individuals or by the legislature; whether it remained integrated
within the structures of the State, whether it was invested with
administrative, rule-making and disciplinary power, and whether it
pursued an aim which was in the general interest (see, mutatis
mutandis, Le Compte, Van Leuven and De Meyere v.
Belgium, 23 June 1981, § 64, Series A no. 43).
- Turning
to the circumstances of the instant case, the Court notes, at the
outset, that the hunting associations in the Land of
Rhineland-Palatinate are established by law in the form of public law
associations. They are subject to the control of the hunting
authority and their internal statutes are subject to the approval of
that authority. Furthermore, hunting associations are allowed to
issue cost orders by administrative acts, which are executed by the
public exchequer.
- Having
regard to these elements, the Court observes that the hunting
associations are subject to State supervision which goes clearly
beyond the supervision normally exercised over private associations.
Furthermore, they are not only obliged to issue their internal
statutes, but have the right to issue cost orders by administrative
acts which are executed by State authorities. The Court thus
considers that the hunting associations are sufficiently integrated
into State structures in order to qualify them as public law
institutions. Furthermore, they pursue the aim to manage the exercise
of the hunting rights and thus to ensure the management and
protection of the game stock, which lies in the general interest.
There is no indication that the legislator classified the hunting
association as “public” or “para administrative”
with the sole aim of removing them from the scope of Article 11 of
the Convention (compare, a contrario, Schneider, cited
above, § 100).
- Having
regard to these circumstances, the Court concludes that the hunting
associations as established under the hunting law of the Land of
Rhineland-Palatinate have to be regarded as public law institutions.
It follows that Article 11 of the Convention is not applicable in the
instant case. Consequently, this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning
of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 14
- The
applicant further complained about having been discriminated against
with regard to his obligation to adhere to a hunting association.
- The
Court reiterates that it has consistently held that Article 14
of the Convention complements the other substantive provisions of the
Convention and the Protocols. It has no independent existence since
it has effect solely in relation to “the enjoyment of the
rights and freedoms” safeguarded by those provisions. Although
the application of Article 14 does not presuppose a breach of those
provisions – and to this extent it is autonomous – there
can be no room for its application unless the facts at issue fall
within the ambit of one or more of the latter (see, among many other
authorities, Haas v. the Netherlands, no. 36983/97, §
41, ECHR 2004 I).
- The
Court has found above that Article 11 was not applicable in the
instant case. It follows that Article 14 cannot be relied on and that
this complaint is to be rejected as being incompatible ratione
materiae with the provisions of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
- Lastly,
the applicant complained that the obligation to tolerate the exercise
of the hunt violated his right to freedom of thought and conscience
under Article 9 of the Convention, which provides:
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion
or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the
interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others.”
A. Admissibility
- The
Court notes that this complaint is linked to the one under Article 1
of Protocol No. 1 and must therefore likewise be declared admissible.
B. Merits
- The
applicant submitted that his convictions as a hunting opponent
attained a level of cogency, cohesion and importance which brought it
within the scope of Article 9 of the Convention. The obligatory
adherence to the hunting association deprived him of the possibility
to act in accordance with his convictions, for example by helping an
injured animal on his premises, and was not justified under any of
the reasons set out in
paragraph 2 of Article 9.
- According
to the Government, the applicant could not rely on Article 9
of the Convention as an individual could not rely on his rights under
that Article if he was obliged to tolerate actions by third parties
which lay 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 before.
- The
Court does not find it necessary to determine whether the applicant’s
complaint 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 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 paragraphs 48 to 55 above). It
follows that there has been no violation of the applicant’s
rights under Article 9 of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints under
Article 1 of Protocol No. 1 taken separately and in conjunction with
Article 14 and under Article 9 of the Convention admissible;
- Declares by a majority the remainder of the
application inadmissible;
- Holds by four votes to three that there has been
no violation of Article 1 of Protocol No. 1 to the Convention;
- Holds by four votes to three that there has been
no violation of Article 1 of Protocol No. 1 in conjunction with
Article 14 of the Convention;
- Holds by six votes to one that there has been no
violation of Article 9 of the Convention.
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) Joint
dissenting opinion of Judges Lorenzen, Berro-Lefèvre
and Kalaydjieva;
(b) Separate
dissenting opinion of Judge Kalaydjieva.
P.L.
C.W.
JOINT DISSENTING OPINION OF JUDGES
Lorenzen,
Berro-Lefèvre and Kalaydjieva
(Translation)
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] nos.
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 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, § 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).
SEPARATE DISSENTING OPIONION OF JUDGE KALAYDJIEVA
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 III)
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.
