Communicated on 29 January 2021
Published on 15 February 2021
FOURTH SECTION
Application no. 44990/18
Patricia SCHERHAUFER and Robert SCHERHAUFER against Austria
and 2 other applications
(see list appended)
SUBJECT MATTER OF THE CASE
The applications concern the requests of co-owners who own landholdings in Upper Austria respectively Lower Austria seeking to terminate their compulsory membership of hunting associations and the requests that their land be exempted from compulsory hunting, as they are opposed to hunting for ethical reasons. Under the Upper Austrian Hunting Act (Oberösterreichisches Jagdgesetz) and the Lower Austrian Hunting Act (Niederösterreichisches Jagdgesetz), respectively, owners of hunting grounds with a surface area of less than 115 hectares are de jure members of a hunting association (Jagdgenossenschaft).
The applicants requested the District Administrative Authorities (Bezirkshauptmannschaft – “the DAA”) of Schärding and Krems, respectively, that their land be declared an area where hunting is not exercised (Ruhen der Jagd). They argued that they had a right to oppose hunting on their land under ECHR case law. The DAAs denied the requests, arguing that the Hunting Acts only contained an enumerative list of a few exceptions to compulsory hunting, such as when a landholding is completely enclosed (section 4 lit. f of the Upper Austria Hunting Act and section 17 § 2 of the Lower Austria Hunting Act, respectively).
The applicants’ complaints to the competent Regional Administrative Courts (Landesverwaltungsgericht) remained unsuccessful.
On 1 December 2017 and on 11 June 2018, respectively, the Constitutional Court declined to deal with the complaints. The Constitutional Court made references to previous decisions in which it had found that the hunting laws of Carinthia and Lower Austria were compatible with the Constitution, including the Convention and Article 1 of Protocol No 1.
On 28 March 2018, 6 July 2018 and 5 September 2018, respectively, the Administrative Court rejected the applicants’ extraordinary appeals against the decisions of the Regional Administrative Courts.
The applicants complain under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention, that the obligation to tolerate hunting on their respective properties imposes a disproportionate burden on them as landowners who, for ethical reasons, are opposed to hunting.
Under Article 9, taken alone and in conjunction with Article 14 of the Convention, they complain that the obligation to tolerate hunting on their respective properties violates their right to freedom of thought and conscience.
Under Article 11, taken alone and in conjunction with Article 14 of the Convention, complain that their forced membership in a hunting association violated their freedom not to join an association.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?
If so, was that interference necessary to control the use of property in accordance with the general interest?
In particular, did that interference impose an excessive individual burden on the applicants (see Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, §§ 79 and 82-85, ECHR 1999-III; Herrmann v. Germany [GC], no. 9300/07, §§ 76-80 and 93, 26 June 2012)?
2. Has there been an interference with the applicants’ freedom of conscience, within the meaning of Article 9 § 1 of the Convention?
If so, was that interference necessary in terms of Article 9 § 2?
3. Are the Austrian hunting associations “associations” for the purpose of Article 11 of the Convention (see Chassagnou and Others v. France, cited above, §§ 100-02; Schneider v. Luxembourg, cited above, §§ 72-74; compare and contrast, Herrmann v. Germany (Chamber judgment), no. 9300/07, 20 January 2011, §§ 76-79)?
If so, has there been an interference with the applicants’ negative freedom of association, within the meaning of Article 11 § 1 of the Convention?
If so, was that interference necessary in terms of Article 11 § 2 of the Convention (see Chassagnou and Others v. France, cited above, §§ 109‑17; Schneider v. Luxembourg, cited above, §§ 78-83)?
4. Have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention, read in conjunction with Articles 9, 11 and/or Article 1 of Protocol 1?
In particular, have the applicants been subjected to a difference in treatment based on the respective applicable Hunting Acts, in their position as land owners who oppose hunting on their grounds for reasons of their conscience?
If so, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1
44990/18
Scherhaufer v. Austria
18/09/2018
Patricia SCHERHAUFER
1984
St. Aegidi
Austrian
Robert SCHERHAUFER
1987
St. Aegidi
Austrian
Stefan TRAXLER
2
47468/18
Zörrer and Eksler v. Austria
04/10/2018
Michael ZÖRRER
1959
Albrechtsberg
Austrian
Christine EKSLER
1963
Albrechtsberg
Austrian
Stefan TRAXLER
3
7161/19
Fischer and Greiner v. Austria
22/01/2019
Eleonore FISCHER
1955
Engelhartszell
Austrian
Josef GREINER
1953
Engelhartzell
Austrian
Stefan TRAXLER
Full & Egal Universal Law Academy