Information Note on the Court’s case-law No. 137
January 2011
Herrmann v. Germany - 9300/07
Judgment 20.1.2011 [Section V]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Obligation of landowner opposed to hunting on ethical grounds to tolerate hunting on his land and to join a hunting association: no violation
[This case was referred to the Grand Chamber on 20 June 2011]
Facts – The applicant is the owner of landholdings in Germany. As such he is automatically a member of the hunting association under the Federal Hunting Law and thus has to tolerate hunting on his land. Being opposed to hunting on ethical grounds, he filed a request with the hunting authority to terminate his membership of the association, but this was rejected. A like request was subsequently rejected by the administrative courts. In December 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint, holding in particular that the legislation pursued legitimate aims and did not impose an excessive burden on landowners. The statutory provisions were, it said, aimed at preserving game in a manner adapted to rural conditions and to ensure a healthy and varied wildlife, and compulsory membership of the hunting association was an appropriate and necessary means of achieving those aims and did not violate the applicant’s property rights or his rights to freedom of conscience or of association. His right to equal treatment had not been violated either, as the law was binding on all landowners.
Law – Article 1 of Protocol No.1: The applicant’s obligation to tolerate hunting on his land interfered with his right to the peaceful enjoyment of his property. The aim of that interference, namely maintaining varied and healthy game populations and avoiding game damage, served the general interest. As to the necessity of the measures at issue, the Court noted that Germany’s situation as one of the most densely populated areas in Central Europe made it necessary to allow area-wide hunting on all suitable premises. It observed that the law in question applied across Germany, which distinguished the situation from that in the French case of Chassagnou and Others* where only 29 of the 93 départements concerned had been made subject to the regime of compulsory membership of hunting associations. While there were statutory exceptions to the system of area-wide hunting, these essentially concerned areas where there was a risk to the general public, nature reserves and land in a specific setting (for example, an enclave surrounded by a private hunting district). Furthermore, the German legal regime did not exempt any public or private owners of property which was suitable for hunting from the obligation to tolerate hunting on their land** and the applicant had a statutory right to a share of the profit of the lease corresponding to the size of his property. Even though the sum he could have claimed did not appear to be substantial, the relevant provisions prevented other individuals from drawing a financial profit from the use of the applicant’s land. He further had a right to compensation for any damage which might be caused by the hunt. In conclusion and having regard to the wide margin of appreciation afforded to the States in this sphere, the Court considered that the Government had struck a fair balance between the protection of the right of property and the requirements of the general interest.
Conclusion: no violation (four votes to three).
Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention: The Court considered that under the provisions of the impugned law there existed a difference in treatment between the owners of smaller plots (such as the applicant) and the owners of larger plots in that the latter remained free to choose how to fulfil their obligation under the hunting legislation (either by carrying out the hunt themselves or leasing the hunting rights), whereas the former merely retained the right to participate in the hunting association’s decisions. However, it accepted that this difference in treatment was justified, in particular by the need to pool smaller plots in order to allow for area-wide hunting and the effective management of the game stock. Similarly, the difference in treatment between the applicant and owners of landholdings which were not subject to the hunt was, as noted under Article 1 of Protocol No. 1, justified by the specific circumstances of the individual plots subject to statutory exceptions.
Conclusion: no violation (four votes to three).
Article 11 alone and in conjunction with Article 14: The present hunting associations were established in the form of public-law associations, subject to the control of the hunting authority, and their internal statutes were subject to the approval of that authority. They were allowed to issue cost orders by administrative acts, which were executed by the public exchequer. They were thus subject to State supervision which clearly went beyond the supervision normally exercised over private associations and were sufficiently integrated into State structures to qualify as public-law institutions. Moreover, they pursued the aims of managing the exercise of hunting rights and of ensuring the management and protection of the game stock, which were in the general interest. Accordingly, a hunting association did not qualify as an “association” for the purposes of Article 11, which was therefore not applicable.
Conclusion: inadmissible (incompatible ratione materiae).
Article 9: The Court did not find it necessary to determine whether the applicant’s complaint that his right to freedom of thought and conscience had been violated fell to be examined under Article 9 as, in any event, any interference with his rights had been justified under paragraph 2 of that provision as being necessary in a democratic society, in the interests of public safety, and for the protection of public health and the rights of others.
Conclusion: no violation (six votes to one).
* Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, 29 April 1999, Information Note no. 5.
** Contrast with the position in Schneider v. Luxembourg (no. 2113/04, 10 July 2007) where Crown property was excluded from the obligation.
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This summary by the Registry does not bind the Court.
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