Case: Herrmann v. Germany
Judgement date: 26 June 2012 (Grand Chamber)
Topic: Sport and the European Convention on Human Rights
Aspect: Protection of property (Article 1 of Protocol No. 1)

Summary of the facts:
This case concerned a landowner’s complaint about being forced to accept hunting on his premises, even though he was morally opposed to hunting. In his view such obligation amounted in particular to a violation of his right to the peaceful enjoyment of his possessions.

Summary of the Court's findings:
The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention, finding that the obligation to tolerate hunting on their property imposed a disproportionate burden on landowners who were opposed to hunting for ethical reasons.

The facts:
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1955 and lives in Stutensee.
A. The applicant’s land
11. Under the German Federal Hunting Act ( Bundesjagdgesetz ), owners of hunting grounds with a surface area of less than 75 hectares are de jure members of a hunting association ( Jagdgenossenschaft ), while owners of larger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate of less than 75 hectares each, which he inherited in 1993 from his late mother. He is thus a de jure member of a hunting association, in this case the hunting association of the municipality of Langsur.
B. The applicant’s claims before the administrative authorities and courts
12. On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority seeking to terminate his membership of the hunting association. The authority rejected his request on the grounds that his membership was prescribed by law and that there was no provision for the termination of membership.
13. The applicant brought proceedings before the Trier 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 Administrative Court to find it established that he was not a member of the hunting association of the municipality of Langsur.
14. On 14 January 2004 the Administrative Court rejected the applicant’s request. It considered that the Federal Hunting Act did not violate the applicant’s rights. With regard to the Chassagnou judgment, the Administrative Court took the view that the situation in Germany differed from that in France. It observed, in particular, that German owners of hunting grounds were able, by virtue of their membership of the hunting association, to influence the decision-making process as to how the relevant hunting rights should be exercised. Furthermore, they had the right to receive a share of the profits derived from the exercise of those hunting rights. All owners of plots which were too small to allow proper management of hunting rights joined a hunting association. The court further considered that the hunting associations not only served the leisure interests of those who exercised the hunting rights, but also imposed certain specific obligations on them which served the general interest, in particular a duty to manage game stocks with the aim of maintaining varied and healthy game populations and a duty to prevent damage caused by wild game. They were further obliged to comply with specific quotas set by the authorities for the hunting of game. These duties applied in the same way to the owners of hunting grounds of more than 75 hectares, notwithstanding the fact that these bigger plots were not grouped together in common hunting districts.
15. On 13 July 2004 and 14 April 2005 the Rhineland-Palatinate Administrative Court of Appeal and the Federal Administrative Court dismissed the appeals lodged by the applicant, on the same grounds as the Administrative Court.
C. The decision of the Federal Constitutional Court
16. On 13 December 2006 the Federal Constitutional Court (1 BvR 2084/05) refused to admit a constitutional complaint by the applicant for adjudication. It noted at the outset that the provisions of the Federal Hunting Act did not violate the applicant’s right to the peaceful enjoyment of his property, but defined and limited the exercise of that right in a proportionate manner. The relevant provisions pursued legitimate aims, were necessary and did not impose an excessive burden on landowners.
17. When defining the content and limits of property rights, the legislature had to weigh the landowners’ legitimate interests against the general interest. It had, in particular, to respect the principles of proportionality and 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 allowed to the legislature depended on the specific context; the more important the social considerations, the wider the margin of appreciation.
18. Applying these principles to the instant case, the Federal Constitutional Court considered that the applicant’s compulsory membership of a hunting association did not violate his property rights. The core area of that right had not been infringed. The Federal Hunting Act pursued the legitimate aims of preserving game in a manner adapted to the rural and cultural environment and ensuring healthy and varied wildlife, aims encompassed in the notion of “management and protection of game stocks” ( Hege ). Under the Federal Hunting Act, gamekeeping was a means not only of preventing damage caused by wildlife, but also of avoiding any impediment to the use of the land for agriculture, forestry and fishing. These aims served the general interest.
19. Compulsory membership of a hunting association was an appropriate and necessary means of achieving those aims. Referring to paragraph 79 of the Chassagnou judgment, cited above, the Constitutional Court considered that the European Court of Human Rights had acknowledged that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks. Compulsory membership of a hunting association was also a proportionate means. The impact on property rights was not particularly serious and did not outweigh the general interest in the rational management of game stocks. Furthermore, the Federal Hunting Act conferred on every member of the hunting association the right to participate in the decision ‑ making process within the association and to receive a share of the profits derived from the leasing of the hunting rights.
20. The Constitutional Court further considered that there had been no violation of the applicant’s right to freedom of conscience. It noted that in paragraph 114 of the Chassagnou judgment the European Court of Human Rights had accepted that the convictions of the applicants in that case attained a certain level of cogency, cohesion and importance and were therefore worthy of respect in a democratic society. The Constitutional Court left open the question whether this assessment was correct in Mr Herrmann’s case. It agreed, however, to take this assumption as a starting point as it considered that in any case there had been no violation of Article 4 of the Basic Law (see paragraph 25 below). It was doubtful whether there had been any interference with the applicant’s right to freedom of conscience. Even assuming that there had been, it was, in any event, not of a serious nature. As the applicant was not forced to participate in hunting himself and did not have to take any decision in that respect, the court considered that he had not been placed in a position of conflict of conscience. It further observed that the right to freedom of conscience did not encompass a right to have the entire legal order made subject to one’s own ethical standards. If the legal order distributed the right to make use of a certain property among several stakeholders, the owner’s conscience did not necessarily outweigh the other stakeholders’ constitutional rights. If the applicant’s landholding – and those of other owners who were opposed to hunting – were taken out of the common hunting districts because of the landowners’ convictions, the whole system of property ownership and management of game stocks would be jeopardised. The right to freedom of conscience did not outweigh the general interest in the instant case.
21. According to the Federal Constitutional Court, the applicant’s complaint did not come within the scope of the right to freedom of association because German hunting associations were of a public nature. They were vested with administrative, rule-making and disciplinary prerogatives and remained integrated within State structures. There was thus no doubt that the association was not characterised as “public” simply in order to remove it from the scope of Article 11 of the Convention.
22. The Federal Constitutional Court further considered that the applicant’s right to equal treatment had not been breached. The administrative courts had put forward relevant reasons for drawing a distinction between the owners of landholdings of less than 75 hectares and those of more than 75 hectares (see paragraph 11 above). Contrary to the situation in France, which had been examined by the Court in the Chassagnou judgment, the Federal Hunting Act applied to the whole of Germany and was binding on all landowners. The owners of land of more than 75 hectares had the same duties with regard to gamekeeping as those who belonged to hunting associations.
23. Finally, the Federal Constitutional Court observed that the administrative courts had considered the Chassagnou judgment and had emphasised the differences between German and French law as applicable at the relevant time.
D. The use of the applicant’s land
24. Having been invited by the President of the Grand Chamber to provide the Court with additional information regarding the actual use of the applicant’s land, the Government submitted a declaration by the farmer who had taken out a lease on the agricultural land to which the applicant’s plots belonged. The farmer submitted that she regularly used the land to raise cattle destined for slaughter. This was confirmed in a written statement by the mayor of the municipality of Langsur. The applicant submitted that he had visited the plots several times over the previous years without ever seeing any cattle. He had never given permission for his land to be used in that way and would take legal action against any possible abuse.

Relevant law and the Court's assessment:
II. RELEVANT DOMESTIC LAW
A. The Basic Law
25. The Basic Law provides:
Article 4 [Freedom of faith and conscience]
“(1) Freedom of faith and conscience and freedom to profess a religious or philosophical creed shall be inviolable.”
Article 14 [Property – Inheritance – Expropriation]
“(1) Property and the right of inheritance shall be guaranteed. Their content and limits shall be defined by the law.
(2) Property entails obligations. Its use shall also serve the public good.”
Article 20a (as in force since 1 August 2002) [Protection of the natural foundations of life and animals]
“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation and, in accordance with law and justice, through executive and judicial measures, all within the framework of the constitutional order.”
Article 72 (as in force since 1 September 2006) [Concurrent legislative powers]
“(1) On matters falling within the scope of concurrent legislative powers, the Länder shall have power to legislate so long as and to the extent that the Federation has not exercised its legislative powers by enacting a law.
(2) ...
(3) If the Federation has made use of its power to legislate, the Länder may enact laws at variance with this legislation with respect to:
1. hunting (except for the law on hunting licenses);
...
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 Bundesrat. As regards the relationship between Federal law and the laws of the Länder, the more recent law shall take precedence in respect of matters coming within the scope of the first sentence.”
B. The Civil Code
26. Section 960(1)(1) of the Civil Code provides:
“Wild animals shall be ownerless as long as they are not in captivity. ...”
C. The Federal Hunting Act
27. Section 1 of the Federal Hunting Act (Bundesjagdgesetz) reads as follows:
“(1) Hunting rights shall comprise the exclusive rights to protect, hunt and acquire ownership of wild game in a specific area. Hunting rights shall be linked to a duty to manage and protect game stocks ( Pflicht zur Hege ).
(2) The management of game stocks shall be aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with the prevailing cultural conditions and at preventing damage caused by game ...
(3) Persons engaging in hunting shall abide by the commonly accepted standards of the German ethical principles governing hunting ( deutsche Weidgerechtigkeit ).
(4) Hunting shall encompass the search for, pursuit, killing and catching of wild game.
...”
28. The Federal Hunting Act distinguishes between hunting rights ( Jagdrecht ) and the exercise of hunting rights ( Ausübung des Jagdrechts ). The landowner has hunting rights over his or her property. The exercise of hunting rights is regulated by the following sections of the Hunting Act:
Section 4
“Hunting rights may be exercised either in private hunting districts (section 7) or in common hunting districts (section 8).”
Section 6 (Enclosed properties, suspension of the hunt)
“The hunt shall be suspended on land which does not belong to a hunting district, and on enclosed properties ( befriedete Bezirke ). Limited exercise of hunting rights may be permitted. This law does not apply to zoological gardens.”
29. Section 7 provides, inter alia, that plots of at least 75 hectares which can be used for agriculture, forestry or fishing and which belong to a single owner constitute private hunting districts.
30. Section 8 provides that all land which does not belong to a private hunting district constitutes a common hunting district if it has an overall surface area of at least 150 hectares. The owners of land belonging to a common hunting district are de jure members of a hunting association according to the following provisions:
Section 9(1)
“The owners of land belonging to a common hunting district shall form a hunting association. The owners of land on which hunting is prohibited shall not belong to the hunting association.”
Section 10
“(1) The hunting association shall as a rule operate the hunt on a leasehold basis. The lease may be limited to the members of the association.
(2) The hunting association shall be allowed to lease out the hunting rights on its own account. With the agreement of the competent authority, it may decide to suspend the hunt ( Ruhen der Jagd ).
(3) The association shall decide on the use to be made of the net profits from the hunt. If the association decides not to distribute them among the owners of the hunting grounds according to the amount of land they own, each owner who contests this decision shall be allowed to claim his or her share. ...”
31. The practice of hunting is regulated as follows:
Section 20
“(1) Hunting shall be prohibited in areas where it would, in the specific circumstances, disturb public peace, order or safety or endanger human life.
(2) Hunting in nature and wildlife conservation areas and in national and wildlife parks shall be regulated by the Länder .”
Section 21(1)
“The shooting of game is to be regulated in a manner which fully safeguards the legitimate interest of agriculture, fishery and forestry in being protected from damage caused by wild game, and which takes into account the requirements of the conservation of nature and the landscape. Subject to these restrictions, the regulation of game shooting shall contribute to maintaining a healthy population of all domestic game in adequate numbers and, in particular, to ensuring the protection of endangered species.”
32. Liability for damage caused by game is regulated as follows:
Section 29(1)
“If a plot belonging to a common hunting district or being incorporated in a common hunting district is damaged by cloven-hoofed game, wild rabbits or pheasants, the hunting association shall compensate the landowner for the damage. The cost of compensation shall be borne by the members of the association in proportion to the size of their respective plots. If the leaseholder of the hunt has assumed partial or full liability for compensation in respect of game damage, he or she shall be liable. The hunting association shall remain liable if the person who sustained the damage is unable to obtain compensation from the leaseholder.”
D. The Hunting Act of Rhineland-Palatinate
33. In so far as relevant, the Hunting Act of Rhineland-Palatinate – the Land where the applicant’s plots are located – provides as follows:
Section 7
“(1) Hunting association are public-law corporations. They are subject to State supervision, exercised by the local hunting authority ... Each hunting association shall create its own statutes ( Satzung ). The statutes must be approved by the supervisory authority unless they are in accordance with the model statutes issued by the highest hunting authority; in this case, notice of the statutes shall be given to the local hunting authority. If the hunting association fails to create statutes within one year after the issue of the model statutes, the supervisory authority shall create and publish them ... at the association’s expense.
...
(4) Cost orders ( Umlageforderungen ) shall be enforced in accordance with the provisions of the law on the enforcement of administrative acts. The powers of enforcement shall be exercised by the treasury office responsible for enforcing the claims of the municipality in which the association is situated ...”
III. COMPARATIVE LAW
34. The research undertaken by the Court in relation to forty Council of Europe member States shows that membership of a hunting association is not compulsory in thirty-four countries (Albania, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, the Netherlands, Poland, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom). In Austria, France and Sweden membership of a hunting association is obligatory in principle. The legislation in Georgia and in Switzerland makes no provision for hunting associations. Lastly, hunting is not practised in Monaco.
35. Considerable differences exist between these member States’ laws as regards the obligation for landowners to tolerate hunting on their land. Of the thirty-nine member States in which hunting is practised, eighteen (Albania, Azerbaijan, Belgium, Estonia, Finland, Georgia, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Portugal, “the former Yugoslav Republic of Macedonia”, the United Kingdom and Ukraine) do not oblige landowners to tolerate hunting, while eighteen others (Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Greece, Italy, Montenegro, Poland, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Sweden and Turkey) do. However, both groups provide for exceptions of varying degrees to their respective rules. In France and the Czech Republic, the obligation to tolerate hunting depends on the specific situation regarding the plot of land and on administrative decisions. In Switzerland, there is no legislation governing the obligation to tolerate hunting.
36. In four member States the legislation or case-law has been amended following the Court’s judgment in the case of Chassagnou and Others, cited above. In France, under the Loi Voynet of 26 July 2000, owners of land who are opposed to hunting for ethical reasons may, under certain conditions, request the termination of their membership of a hunting association. In Lithuania, following a ruling by the Constitutional Court, section 13(2) of the Hunting Act ceased to apply on 19 May 2005. Under this provision, landowners could object to hunting on their land only in cases where it might cause damage to their crops or forest land. In Luxembourg, in the wake of the judgments in Schneider v. Luxembourg (no. 2113/04, 10 July 2007) and Chassagnou and Others, cited above, the Hunting Act of 20 July 1929 was repealed and a new Act entered into force on 31 May 2011. It provides that landowners opposed to hunting on their land may, under certain conditions, request termination of their membership of a hunting association. Lastly, in the Czech Republic, the Constitutional Court ruled on 13 December 2006 that the administrative authority had to decide whether land could be included in a hunting district by weighing the different interests at stake in the light of the principles set out in the Chassagnou judgment.
THE LAW
I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
37. In his submissions before the Grand Chamber, the applicant reiterated his complaint under Article 11 taken separately and in conjunction with Article 14 of the Convention. In the alternative, he complained under Article 8 of the Convention about his compulsory membership of the hunting association.
38. The Court reiterates that the “case” referred to the Grand Chamber is the application as it has been declared admissible by the Chamber (compare, among many other authorities, K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 109, ECHR-2007-IV; and Taxquet v. Belgium [GC], no. 926/05, § 61, ECHR 2010). This means that the Grand Chamber may examine the case in its entirety in so far as it has been declared admissible; it cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, §§ 59-62 ECHR 2007 ‑ I, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 235, 26 June 2012).
39. It follows that in the context of the present case, the Court no longer has jurisdiction to examine the complaints under Article 11, taken alone and in conjunction with Article 14 of the Convention, which were declared inadmissible by the Chamber (see paragraph 4 above). The same applies to the complaint under Article 8 of the Convention, a provision which was not relied upon by the applicant before the Chamber.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
40. The applicant complained that the obligation to tolerate the exercise of hunting rights on his property violated his right to the peaceful enjoyment of his possessions as guaranteed by 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.”
A. The Chamber judgment
41. The Chamber found that the obligation to allow hunting on his property interfered with the applicant’s right to the peaceful enjoyment of his property but was justified under the second paragraph of Article 1 of Protocol No. 1 to the Convention. The Chamber noted at the outset that the Federal Hunting Act was aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with cultural conditions, and at avoiding game damage. The Chamber accepted that these aims were in the general interest.
42. With regard to the proportionality of the interference, the Chamber took note of the emphasis the relevant law placed on the maintenance of healthy fauna in accordance with ecological and economic conditions. Even though it appeared that hunting was primarily practised by individuals during their spare time, the Chamber considered that the purpose of the Hunting Act could not be reduced to merely enabling certain individuals to exercise a leisure activity.
43. With regard to the necessity of the measure at issue, the Chamber further considered that the German law, in contrast to the legislation examined in the cases of Chassagnou and Schneider, cited above, applied nationwide and did not exempt the public or private owners of any property that was a priori suitable for hunting from the obligation to tolerate hunting on their property. Lastly, it considered that any exceptions to the rule of area-wide hunting were sufficiently justified by general and hunting-related interests and thus did not call into question the principle of area-wide hunting as such.
44. The Chamber further noted that the applicant was entitled to a share of the profits from the lease in proportion to the size of his property. Even though the sum he could claim did not appear to be substantial, the Chamber considered that the relevant provisions prevented other individuals from deriving financial profit from the use of the applicant’s land.
45. 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 Chamber concluded that there had been no violation of Article 1 of Protocol No. 1 (see paragraphs 45-56 of the Chamber judgment).
B. The parties’ submissions
1. The applicant
46. The applicant submitted that the limitations imposed on the use of his land by the Federal Hunting Act were disproportionate. The German legislature had failed to strike a fair balance between his interest in enjoying the use of his property and the alleged general interest in the practice of hunting. As he was the only landowner within the hunting association who was opposed to the practice of hunting, he was materially unable to prevent the leasing of the hunting rights.
47. The circumstances of the case resembled those examined by the Court in the cases of Chassagnou and Schneider, cited above, and thus should lead to the same conclusions. The aims pursued by the German legislature were largely similar to those that had been pursued in France and Luxembourg.
48. The concept of “ Hege” (the management and protection of game stocks) dated back to the Third Reich and did not serve the protection of game. Recent scientific research had demonstrated that wild game was able to self ‑ regulate and that excessive hunting even increased the numbers of certain species. Road accidents involving wild game were in the majority of cases caused by hunting. Furthermore, hunting did not in any way respect the need to protect rare and endangered species.
49. In Germany, the hunt was in practice exercised as a leisure activity. Many species such as birds of prey were hunted without any ecological or economical necessity. Hunting 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 Basic Law (see paragraph 25 above), while the right to hunt was not protected either by the Basic Law or by the Convention.
50. The statutory measures laid down by the hunting legislation were by no means necessary for the control of property in accordance with the general interest. This was demonstrated by the fact that the Federal Hunting Act contained numerous exemptions from the obligation to tolerate hunting, in particular regarding areas which did not belong to a hunting district (for example, enclaves within a private hunting district). Furthermore, the hunting authority could authorise suspension of the hunt. The Länder were entitled to create areas which were not subject to hunting rights and had done so, in particular by creating vast nature reserves in which hunting was prohibited or only permitted under very exceptional circumstances.
51. As the total number of hunters amounted to 358,000 and these hunted only occasionally in their spare time, it was materially impossible to subject the whole of German territory to the hunt. Furthermore, since the reform of the Federal system in Germany in 2006, the Länder were free to regulate hunting on their own initiative or even to abolish hunting altogether.
52. The applicant contested the Government’s argument that the situation in Germany differed from that encountered in France, Luxembourg or other member States. In Germany, the average population density per square kilometre was 230 inhabitants; in many Länder, it was far below this figure. The population density in the Land of Rhineland-Palatinate, in which the applicant’s plots were situated, was 203 inhabitants per square kilometre and was thus very close to the population density in Luxembourg (189 inhabitants per square kilometre). The applicant’s land was only two kilometres from the Luxembourg border. Numerous States Parties to the Convention did not have hunting associations and yet did not encounter problems deriving from excessive numbers of wild animals.
53. The measure was also disproportionate. The applicant had no effective means available to him by which to prevent hunting on his land. Furthermore, he had not received any financial compensation for the obligation to tolerate hunting on his property. In view of his ethical convictions, the psychological stress he suffered as a result of the hunt could not be made good by financial compensation, which in any event would only be minor. The applicant further relied on the Court’s argument concerning the irreconcilability of financial compensation with the ethical motives invoked by him (the applicant referred to Schneider, cited above, § 49).
2. The Government
54. The Government conceded that the obligation to tolerate hunting, which ran counter to the applicant’s convictions, had interfered with his rights under Article 1 of Protocol No. 1. Nevertheless, they pointed out that in Germany – in contrast to the situation in France and Luxembourg, where hunting rights were transferred completely to the hunting associations – the landowner remained the holder of the hunting rights and was thus not deprived of any possessions. He merely had to cede the right to practise hunting. Privately owned land, which was limited in quantity, had a particular social relevance which entitled the legislature to limit its use in the general interest.
55. Unlike the French Loi Verdeille, the German Federal Hunting Act did not pursue the goal of furthering the leisure activities of individual hunters or even of giving individuals the possibility of participating in hunting as a group, but pursued exclusively aims in the public interest. The German hunting legislation differed substantially from the French and Luxembourg laws. This was evident in the notion of “ Hege ”, which transcended the simple management of orderly hunting and encompassed general protection of game stocks. Hunting rights entailed an obligation to preserve varied and healthy game stocks while at the same time regulating the numbers of game in order to prevent game damage in agricultural and forest areas. Regulation of the quantity of wild game was particularly important in a densely populated country like Germany, for example in order to avoid the spread of animal diseases or damage caused by wild game on other property.
56. The system of hunting associations in Germany covered all areas, including State-owned property, and was internally consistent. In contrast to the situation in France, in Germany the principle of area-wide hunting applied across the entire Federal territory. It was essential that hunting be carried out in all suitable areas, as game did not stop at district borders and would retreat into areas which were exempt from hunting. Exempting individual areas from the hunting system would lead to hunting districts being fragmented into numerous smaller areas; this ran counter to the principle of uniform maintenance and protection of game stocks.
57. In contrast to the situation under Luxembourg law, a duty to practise hunting also existed on larger plots of land. Even though the owners of plots of more than 75 hectares were not de jure members of a hunting association, they were obliged to regulate game stocks and thus to practise hunting in the same way as the owners of plots belonging to a common hunting district.
58. There were only a few exceptions to this rule, all of which were based on overriding general interests. It was true that the hunt was suspended in those areas which did not belong to a hunting district. However, only a few areas fell within the scope of that provision and they were generally incorporated into other hunting districts. The hunting authority only granted a suspension of the hunt in exceptional cases and for reasons relating to the management and protection of game stocks. Even in nature reserves hunting was not generally excluded; the regulation of the hunt depended on specific conservation aims. The reform of the Federal system had not changed this situation, as all the Länder had opted to maintain the system of area-wide hunting.
59. The fact that other countries did not have hunting associations did not mean that landowners in those countries did not have to tolerate hunting on their properties, as other States also needed to find ways of fulfilling their international treaty obligations to protect species and animals. The natural system of self-regulation of wild game had ceased to function in the densely populated and heavily exploited regions of Central Europe.
60. The regulations set out in German law were necessary as there was no less intrusive means that would have been equally suited to achieving the legislature’s aims. A system based on voluntary participation could not ensure a solution covering the whole area. Furthermore, compulsory membership ensured that none of the persons concerned were excluded from the system. A State-run administrative hunt was likewise not an efficient system, since without the self-administering hunting associations the State would have to undertake considerably more – and more expensive – regulation and monitoring in order to achieve the objectives of hunting.
61. Even though the applicant had no realistic means of preventing hunting on his land, this did not impose a disproportionate burden on him. The obligation to tolerate hunting was only of relevance during the hunting season. In addition, German law provided for a number of different forms of compensation which entirely made up for the interference with the applicant’s property rights.
62. Firstly, unlike in France, the landowners were entitled to a share of the profits derived from the leasing of the hunting rights. However, the applicant had never claimed his share from the hunting association. The Government did not subscribe to the view expressed by the Court in the Schneider judgment that ethical convictions could not be balanced against financial compensation (see Schneider, cited above, § 49). Article 1 of Protocol No. 1 protected the enjoyment of property without being subjected to external limitations. It did not, however, in any sense protect ethical convictions, still less authorise property owners to use their rights to political ends as envisaged by the applicant.
63. Secondly, the applicant had the possibility of participating in the decision-making process within the hunting association with the aim of convincing the majority of members of his personal point of view and having this incorporated within the framework of the applicable law.
64. Furthermore, the interests of landowners were safeguarded to the greatest extent possible by the Federal Hunting Act, which imposed on persons participating in the hunt the duty to respect the legitimate interests of landowners and made them liable for any damage caused by the hunt.
65. The limitations imposed on hunting took into account ethical considerations, for example by prohibiting the use of certain kinds of ammunition. The applicant remained free to take measures to protect wildlife on his property. Furthermore, it was appropriate to impose on persons engaging in hunting the duty to catch, take care of and, if necessary, kill seriously injured game because only hunters had the necessary training allowing them to assess the situation and to take the necessary measures.
3. The third-party interveners
(a) German association for the protection of hunting ( Deutscher Jagdschutz ‑ Verband e. V., DJV)
66. The DJV – a private association representing the interests of hunters in Germany – emphasised the significance of the outcome of the instant proceedings both for the entire hunting system and for hunters’ interests. In order to be allowed to hunt, hunters had to prove extensive knowledge in the relevant spheres and had to adhere to the highest ethical standards regarding the protection of animals and nature conservation. The specific situation in Germany, in particular its dense population and the intensive cultivation of its land, made it extremely difficult to regulate game populations.
67. The principle of area-wide hunting was implemented consistently in Germany. Areas excluded from hunting districts under section 6(1) of the Federal Hunting Act comprised less than 0.01 % of all land. Exclusion was only temporary and the hunting authorities were required to incorporate such areas rapidly into neighbouring hunting districts. There was currently no known case in which an application to suspend the hunt temporarily had been approved by the higher hunting authority of the Land of Rhineland ‑ Palatinate, where the applicant’s property was situated.
68. 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. Fleeing and injured animals could not be followed into these areas, and it would become virtually impossible to practise hunting effectively and provide relief to suffering animals. Summing up, the DJV considered that it would no longer be possible to ensure the proper regulation of game populations, resulting in severe disruption to the ecological balance. Furthermore, hunters would no longer be prepared to assume liability for damage caused by wild game.
(b) Federation of hunting associations and owners of private hunting districts ( Bundesarbeitsgemeinschaft der Jagdgenossenschaften und Eigenjagdbesitzer, BAGJE)
69. The BAGJE – a federation of all State/regional associations and State-sponsored committees of property owners possessing hunting rights – emphasised the significance of the Court’s ruling in the instant case for the thousands of landowners they represented. In Germany, the system of hunting associations was a successful model of self-government and conflict prevention by landowners.
70. The question whether or not hunting was allowed had never been part of the definition of property. The legislature, by regulating the exercise of hunting, did not interfere with landowners’ property rights, but merely defined the meaning of property.
71. The BAGJE further pointed out that a hunting association was not made up of hunters, but comprised all property owners of smaller plots of land. It was not up to the hunting association to decide whether to exercise the hunt on their property. The advantages conferred by membership in a hunting association could not be reduced to the pro rata compensation provided, but also comprised compensation paid to landowners for any damage caused by wild game on their property. This could amount to several thousand euros per year even for the owner of a small plot of land.
C. The Grand Chamber’s assessment
1. Interference with the applicant’s rights under Article 1 of Protocol No. 1 to the Convention
72. The Grand Chamber observes that the Government did not contest the applicant’s assertion that the obligation to allow hunting on his property interfered with his right to the peaceful enjoyment of his property (see paragraph 54 above). The Grand Chamber endorses this assessment and reiterates that the obligation for individuals to tolerate the presence of armed men and hunting dogs on their land constitutes a restriction on the free exercise of their right to use their property (see Chassagnou and Others, cited above, § 74, and Schneider, cited above, § 44).
2. Compliance with the conditions laid down in the second paragraph
73. The interference in question is to be analysed in the light of the second paragraph of Article 1 of Protocol No. 1. The Grand Chamber considers that the impugned hunting legislation can be said to constitute a means of controlling the use of property in accordance with the general interest (compare Schneider, cited above, § 41).
(a) General principles
74. 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 (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 37, Series A no. 98; Broniowski v. Poland [GC], no. 31443/96, § 134, ECHR 2004 ‑ V; and Brosset-Triboulet and Others v. France [GC], no. 34078/02, § 80, 29 March 2010). Consequently, a law interfering with the right to the peaceful enjoyment of possessions 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. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: 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 and Others, cited above, § 75; Schneider, cited above, § 45; and Depalle v. France [GC], no. 34044/02, § 83, ECHR 2010).
(b) Conclusions drawn by the Court in the cases of Chassagnou and Schneider
75. The Court examined for the first time in Chassagnou, cited above, whether the obligation to tolerate hunting on one’s land was compatible with the principles enshrined in Article 1 of Protocol No. 1.
76. In that case the Grand Chamber held that the French Loi Verdeille of 1964 pursued in particular the legitimate aims of avoiding unregulated hunting and encouraging the rational management of game stocks. According to that law, the applicants could not avoid the compulsory transfer of hunting rights and no measure of compensation was contemplated for landowners who, like the applicants, were opposed to hunting and did not wish to derive any advantage or profit from the right to hunt. The Court also noted that this was an exception to two principles: that ownership means the right to enjoy and dispose of things in the most absolute manner, and that no one may hunt on land belonging to another without the owner’s consent. Moreover, automatic membership of municipal hunters’ associations applied only in 29 of the 93 French départements concerned, such associations had been set up in only 851 municipalities and the Loi Verdeille applied only to landholdings less than 20 hectares in area. The above considerations led the Court to the conclusion that the impugned compulsory-transfer system had placed the applicants in a situation which upset 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 could make use of them in a way which was totally incompatible with their beliefs imposed a disproportionate burden which was not justified under the second paragraph of Article 1 of Protocol No. 1 (see Chassagnou and Others, cited above, §§ 79 and 82-85).
77. These findings were subsequently confirmed by a Chamber of the Court in the case of Schneider, cited above, which was lodged by the owner of a small landholding located in Luxembourg. The Chamber noted that, unlike the Loi Verdeille, the law in Luxembourg provided for financial compensation to be paid to the landowner; the Chamber did not, however, consider this fact to be decisive, as the ethical convictions of an opponent of hunting could not be reasonably balanced against an annual fee for the loss of the use of the property. In any event, the amount proposed (EUR 3.25 per year) could not be seen as fair compensation for the applicant (see Schneider, cited above, § 49).
(c) Consistency of case-law
78. The Court reiterates that, while it is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. However, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see, among many other authorities, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001 ‑ I, and Bayatyan v. Armenia [GC], no. 23459/03, § 98, ECHR 2011, and the case ‑ law cited in those judgments).
79. The Court notes that, since the adoption of the Court’s judgments in the cases of Chassagnou and Schneider (both cited above), various Contracting States have amended their respective legislation or modified their case-law in order to comply with the principles set out in these judgments (see paragraph 36 above).
80. That being so, the Court cannot but reaffirm the principles set out in the Chassagnou and Schneider judgments, notably that imposing on a landowner opposed to the hunt on ethical grounds the obligation to tolerate hunting on his or her property is liable to upset the fair balance between protection of the right of property and the requirements of the general interest and to impose on the person concerned a disproportionate burden incompatible with Article 1 of Protocol No. 1.
(d) Application of these principles to the instant case
81. It remains to be ascertained whether, as argued by the Government, the provisions of the German Federal Hunting Act, as applied in the instant case, differ in a relevant way from the factual and legal situation in France and Luxembourg described in the cases of Chassagnou and Schneider, cited above, and, if so, whether the differences in question are substantial enough to justify the conclusion that Article 1 of Protocol No. 1 has not been breached in the particular circumstances of the present case.
82. In doing so, the Court will examine in turn the aims of the legislation in issue, its territorial application, the possible exceptions to compulsory membership and the issue of compensation.
(i) General aims
83. The Court observes, at the outset, that the aims of the German hunting legislation are laid down in section 1(1) and (2) of the Federal Hunting Act (see paragraph 27 above). These include the management of game stocks, which, in turn, is aimed at maintaining varied and healthy game populations at a level compatible with care of the land and with the prevailing cultural conditions and at preventing damage caused by game. The Court further takes note of the Government’s submissions to the effect that hunting is aimed also at preventing the spread of animal diseases. Similarly, one of the main objectives of the French Loi Verdeille was to facilitate “rational organisation of hunting, consistent with respect for the environment” (see Chassagnou and Others, cited above, § 78). Comparable objectives were pursued by the Luxembourg law, which was aimed at “rational management of game stocks and preservation of the ecological balance” (see Schneider, cited above, § 34).
84. The Court further observes that the Federal Hunting Act, in contrast to the French Loi Verdeille, does not appear to be primarily aimed at serving hunters’ interests (compare Chassagnou and Others, cited above, § 106), but requires private hunters to contribute to the achievement of objectives in the public interest (see paragraph 55 above). Notwithstanding this, the German hunting legislation confers certain rights on persons who hunt, such as the right to pursue and to acquire ownership of the game (see section 1(1) of the Federal Hunting Act, quoted in paragraph 27 above). In the Court’s view, the fact that the Hunting Act entails obligations does not, in any event, alter the fact that hunting is primarily carried out in Germany by private individuals as a leisure activity, just as used to be the case in France and Luxembourg.
85. Having regard to the above, the Court concludes that the aims pursued by the German legislation do not differ significantly from those pursued by the French and Luxembourg laws previously examined by the Court.
(ii) Territorial scope and exemptions from membership of hunting associations
86. The Grand Chamber further notes that the Chamber and the Government attached particular weight to the argument that the German hunting legislation applied nationwide (see paragraphs 43 and 56 above). The Court notes that the French Loi Verdeille applied to 29 out of 93 départements concerned, with the possibility of its application being extended to the whole of French territory (see Chassagnou and Others, cited above, §§ 78 and 84). In Luxembourg and Germany the legislation applied – in principle – nationwide. However, following a reform of the German Federal system which entered into force in 2006, the German Länder now have the possibility to regulate hunting by departing from the Federal Hunting Act (see Article 72 of the Basic Law, quoted in paragraph 25 above), although they have hitherto opted to maintain the system of area ‑ wide hunting (see paragraph 58 above).
87. All three laws provide or provided for territorial exceptions for enclosed areas. Under section 6 of the Federal Hunting Act, hunting is suspended on land which does not belong to a hunting district (enclaves, see paragraph 28 above), notwithstanding the possibility of incorporating this land into an existing hunting district (see paragraphs 58 and 67 above). In France and Germany, further exceptions were/are made for nature reserves and game reserves (see Chassagnou and Others, cited above, § 58, and paragraph 31 above), and in Luxembourg, houses and gardens were exempted (see Schneider, cited above, § 19). In France and Luxembourg, roads and railways were also excluded from the hunting districts (see Chassagnou and Others, cited above, § 46, and Schneider, cited above, § 19).
88. As to personal exemptions, the French laws excluded State property, and owners of larger plots were not required to be members of a hunting association (see Chassagnou and Others, cited above, § 116). It appears, furthermore, that the owners of larger plots were not obliged to hunt or to tolerate hunting on their property (see Chassagnou and Others, cited above, § 92). The Luxembourg law excluded all private property owned by the Crown (see Schneider, cited above, § 53). The German hunting legislation is applicable to private and public property alike (see paragraph 30 above). There is, however, some differential treatment depending on the size of the plot of land (see paragraphs 29 and 30 above).
89. Having regard to the above, the Court finds that the differences between the relevant laws on these issues cannot be considered decisive. The nationwide application of the law in Luxembourg did not prevent the Court from finding a violation of Article 1 of Protocol No. 1 in the case of Schneider. The same conclusion could be drawn in Germany because, since 1 September 2006, the Länder have the power to legislate in this sphere and are now free to enact different rules on hunting. It can be inferred from this that hunting does not necessarily have to be regulated in a uniform way throughout the Federal territory.
(iii) Compensation granted to landowners
90. As to the compensation awarded to landowners in return for the use of their land for hunting, the Court observes that the French law did not grant landowners who were opposed to hunting any financial compensation for being obliged to tolerate hunting, but allowed every member of the hunting association to hunt throughout the common hunting district (see Chassagnou and Others, cited above, § 82). Conversely, both the Luxembourg and the German legislation provided/provide for members of the association to receive a proportionate share of the profits from the leasehold. In Luxembourg, the specific landowner in question was entitled to EUR 3.25 per year (see Schneider, cited above, § 49). In Germany, compensation is granted only when explicitly requested and appears to be, in any event, very limited (see paragraphs 53 and 62 above). The Court further notes that landowners in Luxembourg and Germany had/have the right to be compensated for any damage caused by game or by the hunt (see Schneider, cited above, § 37, and paragraph 32 above).
91. It appears that the applicant in the present case did not request the compensation to which he was entitled under German law for being required to tolerate hunting on his land. In the Court’s view, however, it does not sit comfortably with the very notion of respect for an ethical objection to require the objector to approach the relevant bodies for compensation in respect of the very matter that forms the basis for his objection. Such an act could be considered, in itself, to be incompatible with the ethical convictions held by the applicant (see paragraphs 12 and 53 above). Moreover, the Court has misgivings of principle about the argument that strongly-held personal convictions could be traded against annual compensation for the restrictions on the use of the property, which in any event appears to be very limited (see, mutatis mutandis, Schneider, cited above, § 49).
92. Lastly, the Court observes that the Federal Hunting Act leaves no room for the ethical convictions of landowners who are opposed to hunting to be taken into account. In the Court’s view, the documents produced by the Government (see paragraph 24 above) – according to which the applicant’s land was leased to a farmer who used the land for raising cattle destined for slaughter – are not sufficient to cast doubt on the seriousness of the applicant’s convictions, as opposition to hunting cannot be equated with opposition to the slaughtering of animals for human consumption. Moreover, in the light of the material before it, the Court sees no reason to call into question the truthfulness of the applicant’s assertion that he never saw any cattle on his land, never gave permission for the land to be used in that way and would take legal action to prevent or stop any abuse.
(iv) Conclusion
93. To sum up, the Court observes that all three legal systems pursued or pursue similar objectives and provided, or continue to provide, for certain territorial exceptions of varying degrees. The issue of compensation is/was regulated in a very similar way in Germany and Luxembourg, while the French system differed in this respect. Under these circumstances, the Court is not convinced that the situation encountered in Germany is substantially different from those examined by the Court in the cases of Chassagnou and Schneider. Therefore, the Court sees no reason to depart from its findings in those two judgments, namely that the obligation to tolerate hunting on their property imposes a disproportionate burden on landowners who, like the applicant in the present case, are opposed to hunting for ethical reasons.
94. It follows that there has been a violation of Article 1 of Protocol No. 1 to the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
95. The applicant submitted that the Federal Hunting Act discriminated against him in two ways. Firstly, he was discriminated against vis-à-vis owners of real property which did not belong to a hunting district, such as enclaves, which were not subject to hunting rights. Secondly, the relevant provisions discriminated against the owners of smaller landholdings. He relied on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
Article 14 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.”
A. The Chamber judgment
96. The Chamber observed that, under German law, owners of larger plots were not allowed to suspend the hunt completely, but had to fulfil the same obligations regarding the management of game stocks as the hunting associations. A difference in treatment between the owners of smaller and larger plots existed only in so far as the latter remained free to choose the manner in which they fulfilled their obligation under the hunting laws, whereas the former merely retained the right to participate in the decision ‑ making process within the hunting association. The Chamber considered that this difference in treatment was sufficiently justified by the need to pool smaller plots in order to allow area-wide hunting and thus to ensure effective management of game stocks. The Chamber further considered that the fact that the owners of areas which did not belong to a hunting district, such as enclaves, were treated differently was due to the specific situation regarding the plots in question, which justified a difference in treatment (see Chamber judgment, §§ 68-70). Accordingly, the Chamber did not find a violation of Article 14 in conjunction with Article 1 of Protocol No. 1.
B. The parties’ submissions
1. The applicant
97. According to the applicant, the differentiation between owners of larger and smaller landholdings favoured “rich” landowners and did not satisfy the requirements of Article 14. The discrimination was not averted by the fact that the owners of large landholdings had a duty to hunt, as this duty related only to a small proportion of the animals liable to be hunted, and the landowners remained free to decide which species to hunt and how the hunt should be exercised, for example by choosing their preferred hunting method. They could even decide to suspend the hunt and to contest before the courts any order to carry out hunting. According to the applicant, no effective checks were carried out to ensure that the owners of private hunting districts actually fulfilled their obligations with regard to hunting.
98. Furthermore, the owners of private hunting districts were not obliged to tolerate either the erection of hunting facilities or the presence of strangers on their property. In addition, the owners of small plots were deprived of the possibility of observing and taking care of wildlife in its natural habitat. It followed that the transfer of the exercise of hunting rights went beyond what was necessary to prevent damage caused by wild game.
2. The Government
99. The Government submitted that the applicant had not been treated differently from any other landowner with regard to his rights under Article 1 of Protocol No. 1. In contrast to the French and Luxembourg laws, the German legislation ensured that all landowners were subject in equal measure to the duty to hunt. Owners of plots of more than 75 hectares retained the right to hunt but were not allowed to turn their land into hunting-free areas.
100. Furthermore, the owners of larger plots were not free to choose which species of wild game to hunt. Under the Federal Hunting Act, the shooting of game was regulated in order to ensure that a healthy population of all animal species remained in appropriate numbers and that 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 carried out in a sustainable manner.
101. The erection of hunting facilities ensured that hunting could be carried out in conformity with the need to protect animals. The owners of private hunting districts who had leased out their right to hunt had to tolerate the erection of such facilities in the same way as the owners of smaller plots. Lastly, the Government submitted that any difference in treatment was justified. In order to maintain and protect game stocks by means of area-wide hunting, it was necessary to join smaller plots together. The necessary minimum area of 75 hectares had long proved its worth in Germany when it came to effective game management.
3. The third-party interveners
102. The DJV supported the Chamber’s argument that the difference in treatment between the owners of smaller and larger plots, whereby the latter remained free to choose in which way to fulfil their obligations under the hunting legislation, was justified by the necessity of allowing area-wide hunting and thus ensuring effective management of game stocks.
103. The BAGJE emphasised that the owners of private hunting districts were obliged to hunt on their own or to lease the rights to a hunter. All owners of hunting grounds were obliged to fulfil the annual shooting quotas approved by the administrative authorities and had to inform the competent authorities each year of the total number of animals shot. They were also obliged to comply with administrative orders regarding the exercise of hunting, for instance, orders to reduce the game population in the event of a risk of the spread of animal diseases. Unlike the situations examined by the Court in France and Luxembourg, therefore, the German legislation did not confer an advantage on the owners of private hunting grounds.
C. The Grand Chamber’s assessment
104. The Grand Chamber reiterates that Article 14 has no independent existence, but plays an important role by complementing the other provisions of the Convention and the Protocols, since it protects individuals, placed in similar situations, from any discrimination in the enjoyment of the rights set forth in those other provisions. Where a substantive Article of the Convention has been invoked both on its own and together with Article 14 and a separate breach has been found of the substantive Article, it is not generally necessary for the Court to consider the case under Article 14 also, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45, and Chassagnou and Others, cited above, § 89).
105. In the present case, having regard to its findings under Article 1 of Protocol No. 1 (see paragraphs 93-94 above), the Court considers that there is no need to give a separate ruling on the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see Schneider, cited above, § 55).
IV. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
106. The applicant submitted that his obligation to tolerate hunting on his property 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. The Chamber judgment
107. The Chamber did not find it necessary to determine whether the applicant’s complaint fell to be examined under Article 9. With regard to its findings under Article 1 of Protocol No. 1, it considered any potential interference with the applicant’s rights under Article 9 to have been necessary in the interest of public safety, for the protection of public health and for the protection of the rights of others. It followed that there had been no violation of that provision (see Chamber judgment, § 87).
B. The parties’ submissions
1. The applicant
108. According to the applicant, the Federal Constitutional Court had held that his convictions as an opponent of hunting attained a certain level of cogency, cohesion and importance and therefore deserved consideration in a democratic society. His compulsory membership of the hunting association had deprived him of the possibility of acting in accordance with his moral beliefs.
109. The Federal Constitutional Court’s argument according to which no one could derive from the right to freedom of conscience a right to have his or her own ethical persuasions made the yardstick of the entire legal system (see paragraph 20 above) failed to appreciate the degree and significance of individual freedom of conscience, which was “sacrificed” to the right of third parties to hunt, a right that was protected neither by the German Constitution nor by the Convention. Compulsory membership of a hunting association increased the pressure to which a person was subjected when obliged to engage in activities contrary to his or her views.
110. The interference was not justified under Article 9 § 2 of the Convention. In view of the significance of the public interest in the practice of hunting, which was at best low, it was necessary to grant priority to the applicant’s right to freedom of conscience over the right of third parties to carry out hunting on his land.
2. The Government
111. According to the Government, the applicant’s rights under Article 9 had not been violated. They emphasised that the applicant was not obliged to hunt or to be involved in any activity which was not compatible with his convictions. The decision to permit hunting was not taken by the applicant, but by the law in the general public interest. The question was solely whether the applicant, by relying on Article 9 of the Convention, could prevent third persons from hunting on his property.
112. Relying on the Court’s decision in the case of Pichon and Sajous v. France (no. 49853/99, ECHR 2001-X), the Government considered that Article 9 did not confer on those concerned the right to impose their ethical, religious or moral convictions on others, especially if they could also express their ideas by other means. The applicant remained free to publicly enlist support for his moral views by taking part in the democratic process.
113. According to the provisions of the Federal Hunting Act, ownership of land did not comprise the power to ban third parties from entering that land in order to carry out hunting in the general interest. In that regard it was worth noting that the Convention institutions had expressly held that applicants could not invoke Article 9 in order to avoid paying taxes on the grounds that those taxes were used to fund military actions (the Government referred to C. v. the United Kingdom, no. 10358/83, Commission decision of 15 December 1983, Decisions and Reports (DR) 37, p. 142) and that the public interest in the protection of health was sufficient to justify the duty to wear a motorbike helmet, even if this obligation stood in the way of a Sikh’s obligation to wear a turban (the Government cited X. v. the United Kingdom, no. 7992/77, Commission decision of 12 July 1978, DR 14, p. 234).
114. The Government further submitted that the applicant had leased his land to a farmer who kept on the property cattle destined for slaughter (see paragraph 24 above). According to the Government, this shed an interesting light on the applicant’s conscience as far as the killing of animals was concerned. Furthermore, the applicant had never tried to find a way out of the alleged conflict of conscience, for instance by selling the plots of land in question and buying land in an urban area or by trying to influence the decision-making process within the hunting association in accordance with his ethical convictions.
3. The third-party interveners
115. The DJV submitted that under German law the right to hunt on small properties was unrelated to the ownership of property. The transfer of the hunting rights over small landholdings to the hunting association was performed by the legislature. There was thus no need for individual landowners to transfer any of their rights and they could not experience a moral conflict in that respect.
116. The BAGJE submitted that German hunting associations – unlike those in Luxembourg– were not authorised to decide whether hunting should be carried out on their hunting grounds. The obligation to hunt was a purely legislative decision which was independent of membership in a hunting association. It followed that membership in a hunting association did not lead to an obligation to tolerate hunting liable to infringe landowners’ freedom of conscience.
117. The European Centre for Law and Justice (ECLJ) stressed that the Court had acknowledged that Article 9 of the Convention encompassed a right to conscientious objection in the case of Bayatyan (cited above, § 111) regarding military service, and in the case of R.R. v. Poland (no. 27617/04, § 206, ECHR 2011) regarding the performing of abortions by medical professionals. Furthermore, in the judgments in Chassagnou (cited above, § 117) and Schneider (cited above, § 82), the Court had implicitly recognised the right to conscientious objection to hunting, without giving an express ruling under Article 9. Where conscientious objection came into play, the State was under a positive obligation to find solutions capable of accommodating the competing interests in order to reconcile the requirements of individual conscience with the public interest.
118. According to the ECLJ, the obligation to tolerate hunting on one’s land undoubtedly constituted interference with freedom of conscience. Bearing in mind that blanket opposition to hunting was somewhat irrational and the fact that the interference with the applicant’s freedom of conscience was largely confined to his having passively to “tolerate” hunting, the ECLJ considered that there had been a possible, but not clear, violation of Article 9 of the Convention. Conversely, the obligation to join a hunting association constituted interference with the negative right of freedom of conscience. In other words, the applicant was forced to act against his conscience, in breach of his right to conscientious objection under Article 9.
C. The Grand Chamber’s assessment
119. Having regard to its findings under Article 1 of Protocol No. 1 (see paragraphs 93 and 94 above), the Grand Chamber considers that it is not necessary to examine separately the complaint under Article 9 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
120. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
121. The applicant claimed EUR 10,000 in respect of pecuniary and non-pecuniary damage. He pointed out that he had sacrificed a large amount of his free time for the conduct of the proceedings before the domestic courts.
122. The Government submitted that the applicant had failed to specify his claims and to submit documentary evidence supporting them.
123. The Court notes that the applicant did not supply any evidence capable of supporting his claims for pecuniary damage. It is therefore not appropriate to award any compensation under that head. The Court considers, however, that on account of the violations found the applicant must have sustained a certain degree of non-pecuniary damage, which it assesses, on an equitable basis, at EUR 5,000.
B. Costs and expenses
124. Relying on the relevant bills of costs, the applicant also claimed a total of EUR 3,861.91 (including VAT) for the translation expenses incurred before the Court.
125. The Government did not submit any comments.
126. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
127. Regard being had to the documents in its possession, the Court considers it reasonable to award in full the sum claimed by the applicant in respect of costs and expenses (EUR 3,861.91).
C. Default interest
128. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.