European Court of Human Rights
Council of Europe
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IN THE CASE
HERRMANN v. GERMANY
APPLICATION no. 9300/07
According to Article 43 of the Convention, after entry of the judgment at 20 January 2011, I apply for motion to remit the case to the Grand Chamber of European Court of Human Rights.
Reasons for this application to remit the case to the Grand Chamber (Article 43 of the Convention and Article 73 European Court of Human Rights Rules of Court [Verfahrens-ordnung des Europäischen Gerichtshofs für Menschenrechte – EGMRVerfO]):
A.
I.
The case Herrmann v. Germanyraisessome serious questions affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention (B., D., E., F.).
II.
This case also raises a serious issue of general importance within the meaning of Article 43 of the Convention (C.).
III.
The applicant, as well as the judges Lorenzen, Berro-Lefévre and Kalaydjieva, do not share the Chamber’s opinion that there has been no violation of Article 1 of Protocol No. 1 of the Convention (D.).
IV.
The applicant, as well as the judge Kalaydjieva, do not share the Chamber’s opinion that there has been no violation of Article 11 of the Convention (E.).
V.
The applicant does not share the Chamber’s opinion that there has been no violation of Article 9 of the Convention (F.).
VI.
The applicant notes that the Court has violated Article 6 § 1 of the Convention (G.).
B.
The case Herrmann v. Germany raises a serious question affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention (I., II.).
I.
Divergences between Judgments of the Chambers of the European Court of Human Rights
The case Herrmann v. Germany raises a serious question affecting the interpretation or application of the Convention or the Protocols (Article 43 of the Convention) because the Chamber judgment differs from the Grand Chamber judgment Chassagnou and Others v. France ([GC] nos.25088/94, 28331/95 and 28443/95, ECI-IR 1999-III) and the Chamber judgment Schneider v.Luxembourg (no. 2113/04, 10 July 2007). This divergence between judgments of the Chambers requires a decision of the Grand Chamber.
1.
All applicants alleged that their automatic adherence to a hunter’s association and their obligation to allow the exercise of hunting rights on their property violated their rights under Articles 9, 11 and 14 of the Convention and under Article 1 of Protocol No. 1 to the Convention (see Chassagnou and Others v.France, cited above, § 19; Schneider v.Luxembourg,cited above, § 3, 44; see § 3 of the judgment).
2.
The German applicant as well as the judges Lorenzen, Berro-Lefévre and Kalaydjieva cannot see why the interpretation of the Convention in France, Luxembourg and Germany should not be the same:
a)
In the French, Luxembourg and German cases, hunting is a leisure activity or sport (see Chassagnou and Others v.France,cited above, § 108; Schneider v.Luxembourg,cited above, § 59; see § 49 of the judgment).
b)
In the French, Luxembourg and German cases, the legal effects are identical. The legal effects for all applicants are their respective automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on their property so that others can make use of their property in a way which is totally incompatible with their beliefs (see Chassagnou and Others v.France,cited above, §§ 19, 85; Schneider v.Luxembourg,cited above, §§ 3, 44, 51; see §§ 3, 83 of the judgment).
c)
In the French and especially in the Luxembourg and German cases, the disputed legislation pursued several aims, including that of promoting the rational management of the cynegetic heritage and responsibility for the ecological balance and the game stock, while taking into account agricultural and forestry interests (see Chassagnou and Others v.France,cited above, § 108; Schneider v.Luxembourg,cited above, § 34; see § 32 of the judgment).
d)
In the French, Luxembourg and German cases, the effective possibilities for the applicants to successfully ensure that hunting rights were not exercised on their land were almost non-existent (see Chassagnou and Others v.France,cited above, § 115; Schneider v.Luxembourg,cited above, § 81; see § 45 of the judgment and also the SEPARATE DISSENTING OPINION OF JUDGE KALAYDJIEVA).
e)
In the French, Luxembourg and German cases, not all plots of the non-urban territory are grouped in a hunter’s association:
aa)
Under German hunting law, only the hunting rights of owners of plots having less than 75 hectares in area are automatically transferred to a hunting association (see § 69 of the judgment).
bb)
Under the Luxembourg’shunting law, only the hunting rights of owners of plots having less than 250 hectares in area are automatically transferred to a hunting association (Schneider v.Luxembourg,cited above, §53).
cc)
Under French hunting law, only the hunting rights of owners of plots having less than 20 hectares (60 in Creuse) in area are automatically transferred to a hunting association (Chassagnou and Others v.France,cited above, § 120).
3.
In France, where 29 of the 93 départements concerned had been made subject to the regime of compulsory adherence to hunting associations, the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed to be violations of the Convention — with only one dissenting vote (Chassagnou and Others v.France [CC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-III).
4.
This is the same case in Luxembourg where the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed to be violations of the Convention - without a dissenting vote (Schneider v. Luxembourg, no. 2113/04, 10 July 2007).
5.
However, in Germany, the automatic adherence to a hunter’s association and the obligation to allow the exercise of hunting rights on the property have been deemed not to be a violation of the Convention.
6.
The German applicant, as well as the judges Lorenzen, Berro-Lefévre and Kalaydjieva, are not able to differentiate between these three cases.
7.
The conclusion accepted in the Chassagnou and Others and Schneider judgments was as follows:
“notwithstanding the legitimate aims … the result of the compulsory-transfer system has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1.” (seeChassagnou and Others v.France, cited above, § 85 and Schneider v. Luxembourg, cited above, § 51)
8.
The Chamber judgment has not noted this Court’s conclusion in the case Herrmann v. Germany.
9.
The Chamber judgment departs, without good reason, from precedents established in previous cases.
10.
The result of this surprising Chamber judgment is that the human rights of landowners in Germany are considered less important than the human rights of land owners in France and Luxembourg. In effect, this judgment represents discrimination because the juridical facts and the legal effects are identical in the French and especially in the Luxembourg and German cases.
11.
Since the Convention is first and foremost a system for the protection of human rights, the Court must interpret and apply it in a manner which renders its rights practical and effective, not theoretical and illusory [GC] Demir and Baykara v. Turkey, no. 34503/97, 12. November 2008).
12.
The Convention was created to ensure that the citizens in the Member States are guaranteed the same protection of their human rights. This spirit and purpose of the Convention can only be achieved in all Member States if the Convention is uniformly interpreted in cases that have similar fact patterns and which raise identical legal issues. The national legislation must correspond to the specifications of the Convention and not vice versa. Otherwise, the Member States would have the possibility of undermining human rights by means of their national legislation. If a State does not want to accept all Articles of the Convention, it can stay away from the Convention, as some States have done.
13.
The European Court was established to harmonize jurisdiction within the territory in which the European Convention of Human Rights applies.
14.
The Chamber judgment Herrmann v. Germany leads to different judgments in the Member States and to divergences between judgments of the Chambers of the European Court of Human Rights.
15.
In the light of all these considerations, the German applicant believes that the Chamber judgment should be reconsidered. Itis in the interest of legal certainty, foreseeability and equality before the law that the Court should not depart, without good reason, from precedents established in previous cases.
16.
These facts require a decision of the Grand Chamber.
II.
Differences of Interpretation of the Convention by the Judges
The great differences of interpretation of the Convention by the judges imply a serious question affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention. These great differences of interpretation of the Convention by the judges require a decision of the Grand Chamber.
1.
The judges Lorenzen, Berro-Lefévre and Kalaydjieva did not share the majority’s opinion that there has been no violation of Article 1 of Protocol No. 1 in this case.
The judges Lorenzen, Berro-Lefévre and Kalaydjieva pointed out:
“To our great regret we do not share the majority’s opinion that there has been no violation of Article 1 of Protocol No. 1 in this case.
In support of that conclusion, the Chamber judgment’s reasoning sets out numerous arguments demonstrating theexistence of several points of divergence with the situations which, in the past, gave rise to the Chassagnou and Others v France ([GC] no. 25088/94, 28331/95 and 28443/95, ECHR 1999-III.) and Schneider v. Luxembourg (no. 2113/04, 10 July 2007) judgments in which violations of this Article were found.
For our part, we find it difficult to differentiate between these three cases.
Under Article 1 of Protocol No. 1, the only question which arises is whether the measure adopted was “necessary to control the use of property in accordance with the general interest”, it being understood that there must, of course, be a reasonable degree of proportionality between the measure in question and the aim pursued by it.
In the French, Luxembourg and German cases, the disputed legislation pursued several aims including that of promoting the rational management of the cynegetic heritage and respect for the ecological balance.
The question must therefore be asked whether the interference withproperty 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’sanalysis 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 isthat those exceptions show that it is not essential to subject the entirety of the non-urban territory to the exercise of hunting rights.
The system put in place in Germany, intended to regulate hunting by ensuring increased protection for the cynegetic heritage, has resulted, as in the two previous cases, in a situation where it is impossible for the applicant to object to the exercise by third parties of their right to hunt on his land.
The conclusion accepted in the Chassagnou and Others and Schneider judgments was as follows: “notwithstanding the legitimate aim ….. the result of the compulsory-transfer system has been to place the applicants in a situation which upsets the fair balance to be struck between protection of the right of property and the requirements of the general interest. Compelling small landowners to transfer hunting rights over their land so that others can make use of them in a way which is totally incompatible with their beliefs imposes a disproportionate burden which is not justified under the second paragraph of Article 1 of Protocol No. 1”(see Chassagnou § 85, and Schneider § 51).
We are unable to see how a different result can be found in the Herrmann case. A violation of Article 1 of Protocol No. 1 must therefore be found in this case also.
In consequence, having regard to this finding, we also consider that itis not necessary to examine separately whether there has been a violation of Article 14 (taken in conjunction with Article 1 of Protocol No. 1).”
(see JOINT DISSENTING OPINION OF JUDGES LORENZEN, BERRO-LEFÈVRE AND KALAYDJIEVA)
2.
The judge Kalaydjieva did not even share the majority’s opinion that there has been no violation of Article 11 of the Convention.
The judge Kalaydjieva pointed out:
I joined the opinion of Judges Lorenzen and Berro-Lefèvre, which expresses our common failure to see how the different result of finding no violation of Article 1 of Protocol No.1 to the Convention was reached in the present case - having regard to the conclusions of the Court in the similar circumstances of the cases of Chassagnou v. France (Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999-IIIi and Schneider v. Luxembourg (Schneider v. Luxembourg, no. 2113/04, 10 July 2007). In my view the same reasons for disagreement are equally valid for the conclusions of the majority on the applicability of Article 11 of the Convention to the circumstances of the present case.
Having agreed that in the present case “the hunting associations [to which the applicant was obliged to adhere] are sufficiently integrated into State structures in order to qualify them as public law institutions”, the majority arrived at the conclusion that Article 11 does not apply to the circumstances. Similar objections of the respondent Government in Chassagnou did not prevent the Grand Chamber from finding that the fact that the prefect supervised the way the associations operated was not sufficient to support the contention that they remained integrated within the structures of the State. The Court also found that it could not be maintained that the associations enjoyed prerogatives outside the orbit of the ordinary law, whether administrative, rule-making or disciplinary, or that they employed processes of a public authority, like professional associations (see Chassagnou, para. 101).
The Court concluded that to “compel a person by law to join an association such that it is fundamentally contrary his own convictions to be a member of it, and to oblige him, on account of his membership of that association to transfer his rights over the land he owns so that the association in question can attain objectives of which he disapproves, goes beyond what is necessary to ensure that a fair balance is struck between conflicting interests and cannot be considered proportionate to the aim pursued” (para. 117). Those findings were confirmed, as recently as in 2007, in Schneider.
Isee 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 isalso capable of serving as a basis of the majority’s view that “it is not necessary to determine whether the complaint [that the applicant’s obligatory adherence to the hunting associations deprived him of the possibility to act in accordance with his convictions] falls to be examined under Article 9 of the Convention, as it considers that any interference with the applicant’s rights is justified under paragraph 2 of Article 9 as being necessary in a democratic society in the interests of public safety and for the protection of the rights of others.
In particular, I wonder whether mandatory membership of public law institutions aggravates the compulsion an individual suffers when being required to engage in activities contrary to his views. Although mentioned in the views of the Commission, the Court and the Committee of Ministers in the earlier cases of Chassagnou and Schneider came to no findings as to the right to convictions. Regrettably, the brief reasons offered for the majority’s conclusion in the present case provide insufficiently detailed answers to the questions of applicability and respect to the rights under Article 9 of the Convention in the present case.”
(see SEPARATE DISSENTING OPINION OF JUDGE KALAYDJIEVA)
3.
These great differences of interpretation of the Convention by the judges constitute a serious question affecting the interpretation or application of the Convention or the Protocols within the meaning of Article 43 of the Convention.
4.
These great differences of interpretation of the Convention by the judges require a decision of the Grand Chamber.
C.
The case also raises a serious issue of general importance within the meaning of Article 43 of the Convention.
I.
This case affects a large number of landowners in Germany.
II.
1.
Other applicants have brought the same proceedings before German Administrative Courts.
2.
Other applicants have brought the same proceedings before the Bavarian Administrative Court of Appeal (nos. 19 BV 09.2, 19 BV 09.3).