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You are here: BAILII >> Databases >> European Court of Human Rights >> HERRMANN v. GERMANY - 9300/07 (Judgment (Merits and Just Satisfaction)) [2012] ECHR 1110 (26 June 2012) URL: http://www.bailii.org/eu/cases/ECHR/2012/1110.html Cite as: (2013) 56 EHRR 7, 56 EHRR 7, [2012] ECHR 1110 |
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GRAND CHAMBER
CASE OF HERRMANN v. GERMANY
(Application no. 9300/07)
JUDGMENT
STRASBOURG
26 June 2012
This judgment is final but may be subject to editorial revision.
In the case of Herrmann v. Germany,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Nicolas Bratza, President,
Françoise Tulkens,
Josep Casadevall,
Nina Vajic,
Dean Spielmann,
Corneliu Bîrsan,
Boštjan M. Zupancic,
Khanlar Hajiyev,
Egbert Myjer,
David Thór Björgvinsson,
Nona Tsotsoria,
Nebojša Vucinic,
Angelika Nußberger,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
André Potocki, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 30 November 2011 and on 9 May 2012,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
There appeared before the Court:
(a) for the Government
Ms A. Wittling-Vogel, Federal Ministry of Justice, Agent,
Ms S. Schmahl, Professor of Public Law, Counsel,
Ms S. Winkelmaier, Federal Ministry of Justice,
Ms D. Friedrich, Federal Ministry of Agriculture,
Mr A. Heider, Federal Ministry of Agriculture, Advisers;
(b) for the applicant
Mr M. Kleine-Cosack, lawyer, Counsel,
Mr D. Storr, lawyer,
Ms H. Seppain, Advisers.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant was born in 1955 and lives in Stutensee.
A. The applicant’s land
B. The applicant’s claims before the administrative authorities and courts
C. The decision of the Federal Constitutional Court
D. The use of the applicant’s land
II. RELEVANT DOMESTIC LAW
A. The Basic Law
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.
...”
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.”
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
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
THE LAW
I. THE SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
“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
B. The parties’ submissions
1. The applicant
2. The Government
3. The third-party interveners
(a) German association for the protection of hunting (Deutscher Jagdschutz-Verband e. V., DJV)
(b) Federation of hunting associations and owners of private hunting districts (Bundesarbeitsgemeinschaft der Jagdgenossenschaften und Eigenjagdbesitzer, BAGJE)
C. The Grand Chamber’s assessment
1. Interference with the applicant’s rights under Article 1 of Protocol No. 1 to the Convention
2. Compliance with the conditions laid down in the second paragraph
(a) General principles
(b) Conclusions drawn by the Court in the cases of Chassagnou and Schneider
(c) Consistency of case-law
(d) Application of these principles to the instant case
(i) General aims
(ii) Territorial scope and exemptions from membership of hunting associations
(iii) Compensation granted to landowners
(iv) Conclusion
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
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
B. The parties’ submissions
1. The applicant
2. The Government
3. The third-party interveners
C. The Grand Chamber’s assessment
IV. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
“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
B. The parties’ submissions
1. The applicant
2. The Government
3. The third-party interveners
C. The Grand Chamber’s assessment
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
B. Costs and expenses
125. The Government did not submit any comments.
C. Default interest
FOR THESE REASONS, THE COURT
5. Holds by fourteen votes to three
(a) that the respondent State is to pay the applicant, within three months, the following amounts:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,861.91 (three thousand eight hundred and sixty-one euros and ninety-one cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 June 2012.
Michael O’Boyle Nicolas Bratza
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Partly concurring and partly dissenting opinion of Judge Pinto de Albuquerque;
(b) Joint dissenting opinion of Judges David Thór Björgvinsson, Vucinic and Nußberger.
N.B.
M.O.B.
PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE
The Herrmann case is about conscientious objection to hunting. The applicant relies on his right to property and his right to object to hunting on his plot of land, while the Government invoke the obligation on all landowners to manage game stocks and protect the ecological balance, giving rise to a duty to join a hunting association and to tolerate hunting by third parties on their land. Animals and the ecological balance are at the centre of this case, the views of the parties differing on the most appropriate means of protecting both. In other words, the question put by the applicant is intimately related to “mankind’s true moral test”, of which Milan Kundera once spoke[1]. The test is not limited to the question of social restrictions on the right to property, but encompasses the question of the protection of animals within the framework of the European Convention on Human Rights (“the Convention”). Since the first of these questions was already dealt with in a previous Grand Chamber case, the case also raises the complex problem of determining the weight of a judicial precedent for the purposes of the Convention. I agree with the judgment of the Grand Chamber in finding a violation of Article 1 of Protocol No. 1, but disagree with regard to the finding that it was not necessary to examine separately the complaints under Article 9 and Article 1 of Protocol No. 1 taken in conjunction with Article 14. The reasons for my disagreement will be presented with an eye to the current interface between international human rights law and international environmental law.
The protection of animals by the Convention
Animals are protected by the Convention in two ways: as property and as beings in themselves. Animals are “possessions” within the meaning of Article 1 of Protocol No. 1[2]. This has two consequences: (1) the full Convention protection system is available to animal owners in order to guarantee the peaceful enjoyment of their possessions, and (2) the State can impose restrictions on the use of animals by their owners on the basis of the second paragraph of Article 1 of Protocol No. 1, and may punish deliberate or involuntary infringements of these restrictions. But not all animals are possessions. Wild, abandoned or stray animals are also protected by the Convention as a part of a healthy, balanced and sustainable environment. Article 8 provides for an obligation on the State to avoid acts and activities that could have detrimental consequences for public health and the environment[3], and more specifically an obligation on the State to ensure and promote public health regarding the control of wild, abandoned and stray animals[4], ill animals[5] and domestic animals[6]. The clear public interest in various matters concerning animal welfare has also been frequently stressed in the light of the Convention guarantee of freedom of expression[7]. Finally, the Court has unequivocally rejected the existence of a Convention right to hunt[8] or a right to take part in person in the performance of ritual slaughter[9].
The Court’s protection of animals is in line with a contemporary legal trend which distinguishes animals from objects and associates the protection of animals with the broader protection of the environment. This trend has been consolidating not only in the civil and constitutional laws of several countries, but also in international human rights law and international environmental law.
In several countries, the Roman-law notions of animals as res and wild animals as res nullius have been abandoned. The formal legal distinction between animals and objects was introduced in Austria with the entry into force of Article 285a of the Civil Code (Bürgerliches Gesetzbuch) in 1986, which was followed by the approval of Article 90a of the German Bürgerliches Gesetzbuch in 1990, Article 1 of the Polish Animal Protection Act in 1997, Article 528 of the French Code Civil in 1999, Article 641a of the Swiss Civil Code (Zivilgesetzbuch) in 2002 and Article 287 of the Moldovan Civil Code in 2002. According to these provisions, animals are not objects, although some features of the rules governing objects may apply to animals by analogy.
Some Constitutions provide for the protection of animals in general. Examples include Articles 84 § 1, 104 § 3 (b) and 120 § 2 of the Swiss Constitution, Article 20a of the German Basic Law, Article 11bis § 2 of the Luxembourg Constitution, Article 51-A (g) of the Constitution of India, Article 225 § 1 VII of the Brazilian Constitution and Article 39 § 2 of the Angolan Constitution. Other Constitutions have gone a step further, protecting a particular species or group of species of animals, as in the case of Article 178-A of the Constitution of the Canton of Geneva (prohibiting the hunting of mammals and birds), Article 48 of the Indian Constitution (preserving and improving breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle), section 16 of Article X (limiting marine net fishing) and section 21 of Article X (limiting cruel and inhumane confinement of pigs during pregnancy) of the Constitution of the State of Florida, as well as Article 9 of the Chinese Constitution (protecting “rare” animals).
Furthermore, a broad concept of environment balance which includes animal life and welfare, encompassing animals not only as members of a single species or a group of species but also as individual living beings capable of experiencing fear, suffering and pain, has been repeatedly enshrined in international environmental law as established within the United Nations[10], the Organization of African Unity[11], the Organization of American States[12], the Association of Southeast Asian Nations[13], the World Trade Organization,[14] the World Organization for Animal Health[15], and especially the Council of Europe and the European Union.
Among international organisations the Council of Europe and the European Union stand out as the most prolific and effective upholders of animal welfare. The Council of Europe has developed a considerable body of international animal welfare law which includes the 1968 Convention for the Protection of Animals during International Transport (with its 1979 Additional Protocol), the 1976 Convention for the Protection of Animals kept for Farming Purposes (with its 1992 Additional Protocol), the 1979 Convention for the Protection of Animals for Slaughter, the 1979 Convention on the Conservation of European Wildlife and Natural Habitats, the 1986 Convention for the Protection of Vertebrate Animals used for Experimental and other Scientific Purposes (with its 1998 Additional Protocol) and the 1987 Convention for the Protection of Pet Animals[16].
The European Union has conferred the highest legal ranking on the protection of animals as “sentient beings”, including it in a “Protocol on protection and welfare of animals” to the Treaty of Amsterdam. The Protocol, which applies only to animals bred or kept for farming purposes, provides as follows: “In formulating and implementing the Community’s agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals...”. This legally binding obligation was supplemented by four general legal instruments, namely Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport, Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing, Council Directive 98/58/EC of 20 July 1998 concerning the protection of animals kept for farming purposes, and Directive 2010/63/EU of the European Parliament and the Council on the protection of animals used for scientific purposes[17]. The Treaty on the functioning of the European Union reiterated that “the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals...” (Article 13)[18]. The protection of wild fauna is based on Article 191 of the Treaty on the functioning of the European Union, replacing Article 174 of the former TEC which was implemented by Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora.
This “clear and uncontested evidence of a continuing international trend” in favour of the protection of animal life and welfare is reflected in the application of the Convention[19]. As one of the hallmarks of international and European law in contemporary times, the protection of animal life and welfare has also been upheld under the Convention, although this protection is still viewed as a derivative effect of a human right to property or to a healthy, balanced and sustainable environment. The evolving position of the Court shows that it is ready to reject both extremes: neither the commodification of animals nor their “humanisation” reflects the actual legal status of animals under the Convention. In other words, animals are viewed by the Convention as a constitutive part of an ecologically balanced and sustainable environment, their protection being incorporated in a larger framework of intra-species equity (ensuring healthy enjoyment of nature among existing humans), inter-generational equity (guaranteeing the sustainable enjoyment of nature by future human generations) and inter-species equity (enhancing the inherent dignity of all species as “fellow creatures”)[20]. In short, the Convention supports a qualified speciesism which builds upon a responsible anthropocentrism.
The fundamental incommensurability of the positions of humans and animals is borne out in the essentially different status (Wesensverschiedenheit) of humans who cannot be held responsible for their actions and animals. Children, the mentally ill and persons in a coma or a vegetative state are not in essence the same as animals. But the undisputed and undisputable evidence of this incommensurability does not prevent us from acknowledging the inherent dignity of all species living on the planet and the existence of basic comparable interests between humans and other animals and therefore the need to safeguard certain “animal rights”, metaphorically speaking, in a similar way to human rights[21].
Under the Convention, “animal rights” are not legal claims attributed to animals and exercisable through a representative[22], but instead correspond to obligations imposed on the Contracting Parties as part of their commitment to full, effective and practical enjoyment of human rights, and specifically of a human right to a healthy and sustainable environment. Hence, human rights are not trivialised by the surreptitious intrusion of animals into the realm of rational beings, instead they are enriched with the sense of mankind’s full responsibility for the destiny of other species, natural ecosystems and, more broadly, the environment[23]. This responsibility can be formulated legally in positive as well as negative terms. In negative terms, the safeguarding of the environment and animal life constitutes an implicit restriction on the exercise of human rights[24]. In positive terms, it constitutes an inherent obligation on the Contracting Parties bound by the Convention. From this perspective, environmental rights and “animal rights” do not fit neatly into any single category or generation of human rights, but straddle all three classical categories, showing that international human rights law has considerable potential for environmental and animal protection[25].
Conscientious objection to hunting
The instant case tests the Convention’s qualified speciesism. The applicant is opposed to hunting on conscientious grounds. The substance of the applicant’s complaint must be assessed in the light of the standard set out above. The Government claim that the individual conscience of the applicant cannot be the moral yardstick against which the legal order of a democratic State such as Germany should be measured[26]. It is true that not every conviction, genuine though it may be, will constitute a sufficient reason for claiming conscientious objector status. But the Government’s argument can be reversed. The legal order of a democratic State is not compatible with the blanket refusal of an “animal-friendly vision of the world” (tierfreundliche Weltanschauung)[27] which has a solid philosophical basis acknowledged by the Court, various international organisations and the German legislature itself. Put another way, democratic States cannot reject the right to conscientious objection based on the idea of animal welfare, an idea which fosters a sense of solidarity between humans and other living beings and ultimately promotes the “dignity of all creatures”.
In fact, the applicant is not alone in his defence of animal welfare and his rejection of hunting as a form of ill-treatment of animals. A respectable philosophical tradition advocates a change in the way humans deal with animals, based on the premise of the shared nature of all human and non-human animals. The names of Montaigne[28], Rousseau[29], Voltaire[30], Bentham[31], Schopenhauer[32] and Bertrand Russell[33] can be counted among many others who endorsed this tradition, which penetrated very different schools of thought.
In addition, the German constitutional legislature took a significant step aimed at protecting animal welfare with the 2002 constitutional reform, in response to the social uproar caused by the so-called “Ritual slaughter decision” of the Federal Constitutional Court that same year[34]. The political motivation for the constitutional reform was the following: “[T]he protection of animals is today given a higher status. The decisions of different courts show a trend in the case-law towards taking this change of mentality into account in the constitutional interpretation ... through the addition of the words “and the animals” in Article 20a of the Basic Law, protection is extended to individual animals (auf die einzelnen Tiere). The ethical protection of animals is thus given constitutional status”[35]. By elevating the issue of animal protection to the pinnacle of constitutional law, the national legislature not only set a “State objective” (Staatsziel) to the legislature itself, the government, the courts and other public authorities, but also established animal life and welfare as a “constitutional value” (Verfassungswert)[36]. In the present case, the Federal Constitutional Court and the Federal Administrative Court interpreted the new constitutional rule as being capable of influencing the way hunting was carried out, but not its legitimacy[37]. The argument is misplaced, since that is not the issue raised by the applicant. The applicant does not seek to dispute the legitimacy of hunting per se, either at constitutional level or at European level. He seeks only to have his ideological abhorrence of hunting accepted as a legitimate conviction from the standpoint of Article 4 of the Grundgesetz and Article 9 of the Convention. The constitutional status of the protection of animals under Article 20a of the Basic Law is an unequivocal factor legitimising this conviction.
Furthermore, the nature of the applicant’s conscientious objection satisfies the essential requirements of the Federal Constitutional Court’s own dogmatic definition of a decision of conscience as a “serious ethical decision, i.e., one based on the categories of ‘good’ and ‘bad’, by which an individual in a certain situation feels unconditionally bound in his or her innermost self, so that he or she could not act against it without serious qualms of conscience”[38]. In fact, the applicant opposes hunting for absolute and unconditional ethical reasons, regardless of the species of animals concerned or the weapons and methods used by the hunters. Such a belief cannot but be found to constitute a serious conscientious objection.
Finally, the Court itself acknowledged that the objection to hunting is worthy of respect in a democratic society. The right to object to hunting on conscientious grounds comes within the ambit of protection of Article 9. It has the required level of “cogency, cohesion and importance” to be “worthy of respect in a democratic society”[39]. Although that statement was made with regard to the freedom of association enshrined in Article 11, the cogency of conscientious objection to hunting is equally valid for the purposes of Article 9. This conclusion is even more compelling when one bears in mind the derivative protection of animals under the Convention, referred to above, and the rejection of a Convention right to hunt. As the Court has already affirmed, where restrictions are imposed on a right or freedom guaranteed by the Convention in order to protect “rights and freedoms” not, as such, enunciated therein, “only indisputable imperatives” can justify interference with enjoyment of the Convention right or freedom[40]. Since there is no Convention right to hunt, any restriction imposed on the Convention right to freedom of thought requires evidence of an “indisputable imperative”, which the Government has not adduced in the instant case. On the contrary, the animal-friendly philosophical stance of the applicant is in complete harmony with the derivative protection of animals afforded by the Convention.
The ambit of the right to conscientious objection includes not only the freedom to act according to one’s beliefs, but also the freedom not to act, not to associate and not to tolerate actions from others which contradict one’s personal convictions. In the applicant’s case, the mere fact that he is a member de iure of the hunting association entails obligations and duties such as the duty not to fence off his land or in any other way impede the hunt and even the duty not to protect injured game. These duties run directly counter to his convictions and impose on him a way of life and a rule of behaviour incompatible with his beliefs. Thus, it is irrelevant that the applicant is not himself obliged to hunt or to take part in or support hunting[41]. Furthermore, the applicant is faced with a true conflict of conscience: either he remains faithful to his conscience and opposes hunting on his property and thus breaks the law, or he complies with the law and tolerates hunting on his property but breaches his conscience[42]. Ultimately, the applicant would have to give up any land owned by him in hunting areas in order to avoid breaking the law or breaching his conscience. Such a capitus diminutio of persons opposed to hunting for reasons of conscience is not tolerable in a democratic society.
Moreover, the applicant is not imposing his conscience on others, as the Federal Administrative Court claimed[43]. It is obvious that hunters are free to hunt when and for how long they want in spite of the applicant’s opinion on hunting. It is not the applicant who is interfering with the property or hunting rights of third parties. It is the hunting rights of third parties which are interfering with the applicant’s rights to property and conscience. While the “power to dispose” (Verfügungsmacht) of his plot of land is not restricted, it is undeniable that the applicant’s “power to make use” (Nutzungsmacht) of the land is interfered with when strangers enter his property against his will, shooting and killing animals against the dictates of his conscience. The applicant’s duty to tolerate (Toleranzpflicht) hunting on his plot of land does not even allow for any defensive right (Abwehrrecht) in relation to his own land and the game on it. The applicant’s legal and ethical position towards hunting is neither an act of resistance, peaceful or otherwise, against an unjust act or unjust conduct of a public authority (ius resistendi), nor an active refusal to obey an unjust rule or order of a public authority in order to have it changed (civil disobedience). His opposition to the hunting rights of third parties is strictly passive, while the hunters’ interference with the applicant’s rights to property and conscience is active.
The Government argued further during the Grand Chamber hearing that the applicant allows cattle to be bred for slaughter on his land, pointing to a supposed inconsistency in his philosophical beliefs. Even assuming that this new allegation could be taken into account and that the alleged fact is true, which the Court could not ascertain, there is no logical reason to infer opposition to cattle slaughter from an objection to hunting. The different conditions in which the animals are killed may justify cattle slaughter but not hunting. Different methods of killing animals entail different degrees of pain, and much needless suffering can be avoided if the way in which the animal is killed is strictly regulated and the killing is performed in perfectly controlled conditions, such as in a slaughterhouse, with the animals being stunned beforehand, and is carried out by staff professionally qualified for that specific purpose[44]. Those strict conditions are not met in the normal exercise of hunting. Thus, hunting causes a certain amount of needless suffering, to which one can reasonably object.
Like Antigone, who buried her brother Polynices in compliance with the laws of the gods but against the laws of the city of Thebes forbidding the mourning of a traitor, the applicant faced a conflict of conscience between a legal rule and a higher ethical value. It is time to release him from this conflict by affirming that his claim is right and the impugned legal rule is wrong. In sum, I find that Article 9 has been breached by the respondent State, on account of both the compulsory membership of a hunting association, referred to above, and the obligation on the applicant to tolerate hunting by third parties on his land.
Hunting as a social restriction on the right to property: the Chassagnou precedent
In a democratic society, property ownership entails obligations. Landowners do not have unlimited rights over their land, since the law may impose negative and positive obligations on them as long as these are necessary and proportionate in a democratic society. The right to property may come into conflict with the environment. This conflict may take the form of an environmental nuisance impacting on the Convention right or of damage caused to the environment by the exercise of the Convention right. Protection of the environment is a legitimate objective which in certain cases can justify limiting the right to property. When balancing environmental concerns against this Convention right, the Court has recognised that the national authorities are best placed to make decisions on environmental issues, which often have difficult social and technical aspects. Therefore, in reaching its judgments, the Court in principle affords the national authorities a wide discretion.
In the specific case of the conflict between the right to property and the hunting rights of third parties, the Court has already performed the required test of necessity and proportionality. The Court’s conclusion was crystal clear: “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”[45]. Such a statement of principle, made by the Grand Chamber of the Court, has particular legal force which has to be taken into account in ruling on the applicant’s claim that his rights under Article 1 of Protocol No. 1 were breached by the contested German hunting law.
It is in the interests of legal certainty, foreseeability and equality before the law that the Court should not depart from its previous case-law without cogent reasons if the circumstances of the new case are not “materially” distinct from the previous case[46]. A precedent established by the Court can be set aside when there is an emerging consensus, either in the domestic legal systems of Council of Europe member States[47], within the domestic legal order of the respondent State[48] or under specialised international instruments[49], in favour of upholding a different legal standard, or when there is new scientific knowledge impacting on the issue at stake[50]. But while the effect of a previous ruling by the Court is not limited to the persuasiveness of the reasons it provides, it does not possess the force of the stare decisis rule, according to which the principles of law on which a court based a previous decision are authoritative in all future cases in which the facts are substantially the same (stare decisis et non quieta movere, or “to stand by decisions and not disturb the undisturbed”). In fact, the Court is also willing to overrule its own case-law when the latter is uncertain[51] or needs “further development”, this development being carried out with the purpose of enlarging the ambit of protection afforded by the Convention[52].
Moreover, the interpretation of the Convention as a “living instrument” which guarantees effective, not illusory, rights is intrinsically incompatible with a horizontal stare decisis effect of the Grand Chamber’s case-law. Since the Convention must be interpreted in the light of present-day circumstances, the Grand Chamber is not bound by its own previous case-law[53]. On the contrary, the internal structure of the Court implies a vertical stare decisis effect of the Grand Chamber’s case-law on Chamber judgments[54]. Only one exception to this rule exists: in cases where the Chamber wishes to depart from previous Grand Chamber case-law and relinquishes the case, but one of the parties objects to relinquishment, the Chamber may subsequently depart from the aforesaid case-law[55]. The subsequent referral of the case will give the Grand Chamber the opportunity to reassess its own case-law in the light of the impugned Chamber judgment[56]. The same exceptional situation may also occur when a Chamber wishes to depart from previous Chamber case-law. In view of the horizontal stare decisis effect of Chamber judgments on future Chamber judgments, the Chamber is bound by its own previous case-law or that of other Chambers, except when it relinquishes the case and one of the parties objects to relinquishment.
Thus, the consistency of the Court’s case-law depends on a delicate and intricate differentiation of the legal problems and factual circumstances of the cases submitted to it. But this highly delicate task of differentiation between cases should not evolve into a subtle manipulation of the specific characteristics of the case in order to avoid application of a principle established in the Court’s case-law. Any such manipulation would discredit the Court and weaken the authority of its rulings. In the case at hand, there are no substantial differences which justify non-applicability of the principle stated in Chassagnou. The particular characteristics of the instant case are not sufficiently different to warrant a finding that the Chassagnou precedent is not applicable. In other words, a manipulation of the specific characteristics of this case in order to differentiate it from the above-mentioned precedent would in fact amount to an implicit reversal of the case-law.
Regard being had to the criteria set out in the previous French and Luxembourg cases, the similarity between the instant case and those precedents can be easily demonstrated. Firstly, the aim of the French, Luxembourg and German laws is the same: game stock management. The German law, as well as the others, is based on the principle that there is no such thing as self-regulation of game stocks. The parties are not in agreement on this principle. The respondent Government produced no evidence of their allegation that the ecological balance would collapse were it not for the regulation of game stocks achieved as a result of the legal framework in force in Germany.
Secondly, although the material scope of the French and German hunting laws differs in as much as they provide for different exceptions, one cannot legitimately argue that the German law provides imperatively for a universal and mandatory restriction on the right of property based on the need to manage game stocks, while the French law (the so-called Loi Verdeille, in its form prior to the reform undertaken in July 2000) applied only to selected départements of the national territory. Since the 2006 constitutional reform the Länder can even abolish hunting altogether on their respective territories. Hence, a powerful constitutional argument can be derived from this political decision: since the constitutional legislature itself does not regard hunting as a universal and mandatory restriction on the right to property, hunting is not an inherent or implied limitation of the right to property in Germany. While property ownership entails social obligations (Sozialpflichtigkeit des Eigentums), that is not the case with the transfer of landowners’ hunting rights to third parties. In view of the political decision taken by the German constitutional legislature in 2006, property owners are not necessarily bound by the restrictions arising out of the hunting legislation. The door is thus open to conclude that no such social obligation should be imposed on landowners against their will.
Thirdly, unlike in France, the law in Germany provided for compensation for landowners whose lands were used by third parties for the purpose of hunting. This argument was invoked by the Federal Constitutional Court and the Federal Administrative Court, which referred to the applicant’s right to participate in the decision-making process as a member of the hunting association (Mitwirkungsrechten des Beschwerdeführers in der Jagdgenossenschaft) and his right to share in the profits from the use of the land (Teilhaberecht am Pachterlös) as justifying the property restriction[57]. But neither of these rights can be seen as sufficient and adequate compensation for the restriction of the right to property. In view of the insignificant amounts provided for by German law, it cannot reasonably be considered that proper compensation was afforded[58]. Moreover, conscientious objectors cannot be compensated by means of profits earned from the activity to which they object or by the exercise of procedural rights with regard to that activity. To pretend otherwise, on the basis of an allegedly “objective” view (objektive Sicht) of the landowner’s rights[59], would amount to the annihilation of conscientious objection itself. An individual’s conscience does not have a price. Hence, the applicant’s conscience, like that of any other person of honour, cannot be bought.
The conclusion is unavoidable: there are no sound arguments for distinguishing the Chassagnou precedent from the instant case. Therefore, the Chassagnou precedent is valid with regard to the German hunting legislation as well. The disproportionate nature of the restrictions imposed on the right to property is compounded by the fact that less intrusive alternatives to the German system of compulsory membership of hunting associations for landowners and the obligation to tolerate hunting are available in many other European countries, with no negative effects on the natural environment being recorded or known. Although the Federal Constitutional Court considered alternative, less restrictive solutions which could better accommodate the competing interests, such as the suspension of hunting on some plots of land or the creation of voluntary hunting associations, it concluded that they were “not as effective for attaining the legislature’s aims” (nicht gleich effektiv zur Erreichung der gesetzgeberischen Ziele) and that these alternatives would probably entail “considerably more regulation and supervision by the State” (eines voraussichtlich erheblich höheren Regelungs-und Überwachungsaufwands durch den Staat). These speculative arguments do not justify the general, blanket and absolute rule of compulsory membership of hunting associations for landowners, established by the German legislature.
In view of the force of the applicable precedent of Chassagnou and the aforementioned compounding circumstances, I conclude that there has been a violation of Article 1 of Protocol No. 1.
Discrimination against owners of small plots
In Chassagnou, the Court went even further and found a breach of Article 14 in conjunction with Article 1 of Protocol No. 1. The argument was the following: “The Court fails to see what could explain the fact that, in one and the same municipality, large landowners may keep for themselves exclusive hunting rights over their land, particularly with a view to deriving income from them, and are exempted from the obligation to transfer these rights to the community or, not hunting there themselves, may prohibit hunting by others on their land, whereas small landowners, on the contrary, are obliged to transfer the rights over their land to an ACCA”[60]. The principle stated by the Court is that no difference of treatment should be allowed between large and small landowners with regard to the way they use their property. Although the German law provides for a general duty to hunt on small as well as large plots of land, the fact is that an unjustified difference of treatment remains. Unlike the owners of small plots (75 hectares or less), who cannot avoid having strangers coming on to their property to hunt, the owners of large plots (of more than 75 hectares) do not have a similar obligation, because they themselves can hunt or can choose the persons who will hunt on their property. There is no objective reason for the owners of small plots to have to tolerate the presence of strangers on their property while the owners of large plots do not have to tolerate it. The Government argue that the discrimination is justified by the need to pool small plots together, allegedly in order to allow “proper” game management. But this only explains why small plots have to be pooled together, not why owners of large plots do not have a duty to allow third parties on to their property to hunt.
The words of Justice Clarence Thomas during his confirmation hearings, on his willingness to change precedent, echo in my memory. I too think that overruling a case is a “very serious matter”. A judge who wants to overrule a case has the burden of demonstrating not only that the case is incorrect, but that it would be appropriate to take that additional step of overruling it. That is not the case with Chassagnou. I therefore find that, as in Chassagnou, there has in the present case been a violation of Article 14 in conjunction with Article 1 of Protocol No. 1.
JOINT DISSENTING OPINION OF JUDGES DAVID THÓR BJÖRGVINSSON, VUCINIC AND NUSSBERGER
The case Herrmann v. Germany was referred to the Grand Chamber for clarification of the Court’s case-law. The Grand Chamber was called upon to interpret the scope of its own jurisprudence and to decide whether the particular features of the German legislation justified a different approach from the one taken in the previous judgments in Chassagnou v. France and Schneider v. Luxembourg.
We regret that we are unable to agree with the decision of the majority, either in respect of the analysis of the existing case-law or in respect of the assessment of the differences between the respective national regulations.
It is necessary to take into account the fact that the Grand Chamber judgment of the Court in the case Chassagnou v. France and the Chamber judgment in Schneider v. Luxembourg are not identical. On the contrary, the Chamber, in Schneider, went far beyond the findings of the majority in Chassagnou in three very important respects.
Firstly, in Chassagnou, one of the decisive arguments in assessing the proportionality of the regulations was that they were applied only on a selective basis:
“In other words, the need to pool land for hunting applies only to a limited number of private landowners, whose opinions are not taken into consideration in any way whatsoever. What is more, the establishment of ACCAs is compulsory in only 29 of the 93 départements in metropolitan France where the Law applies, and out of some 36,200 municipalities in France only 851 have chosen to set up associations on a voluntary basis .... Lastly, the Court notes that any landowner possessing more than 20 hectares (60 in Creuse) or an entirely enclosed property may object to membership of an ACCA.”
In Luxembourg, on the contrary, the hunting law was in principle applied nationwide, with only private property owned by the Crown being exempted.
Secondly, in Luxembourg the landowners had the possibility in principle of opposing the inclusion of their land in a hunting district, as the decision-making process was based on a democratic process. This was not the case in France.
Thirdly, unlike in France, landowners in Luxembourg were entitled to compensation, albeit a very small amount.
These factors are of great importance in deciding whether a fair balance was achieved in the particular case.
We do not endorse the approach taken by the Chamber for the following reasons.
In our view the regulation of hunting is not a human rights issue per se, but rather an issue as to how to achieve an ecological balance between man and nature in a given environment. Nevertheless, whatever regulations on hunting are adopted they are liable to encroach on the rights of landowners on the one hand and the rights of hunters on the other. Therefore, the Court may be called upon – as in the case of Chassagnou v. France – to assess the hunting legislation in the light of its compatibility with the human rights guaranteed in the Convention. But the Court is not well equipped to decide on the “necessity” of the corresponding restrictions of rights, as the approach to the question of how to achieve an ecological balance is guided first and foremost by science (see the applicant’s statement in paragraph 48) and by experience. Therefore, in Chassagnou, the Court did not enter into the general debate, but based its view on the selective nature of the human rights restrictions characterising the French system, which could not be justified by any reasonable argument. In our view this very specific line of argument could not be transposed to the situation in Schneider v. Luxembourg, where the only exception to the otherwise comprehensive application of the hunting law related to the privileges of the Crown.
Furthermore, while it is acceptable to argue – as was done in Chassagnou – that the right to participate in the hunt could not be regarded as compensation for the infringement of the property rights of an individual who was opposed to hunting, the argument in Schneider that financial compensation would be irreconcilable with ethical motives was not in line with the Court’s case-law on Article 1 of Protocol No. 1. Financial compensation does matter, be it in an expropriation case or in a case concerning restriction of the use of property. The structure of the right to property is fundamentally different from that of the right to freedom of thought, conscience and religion which is protected under Article 9 of the Convention. The judgment in Schneider confused the two human rights guarantees although they are very different in their protective approach. Infringements of property rights can be “paid off”, the others not. There is no reason why restrictions on property rights should be made dependent on the property owners’ convictions. The consequence would be that the convictions of property owners would be given precedence and would enjoy dual protection, under both Article 9 (if applicable) and Article 1 of Protocol No. 1, whereas “normal convictions” would be protected only by Article 9. The case of Schneider v. Luxembourg should have been argued (and dismissed) under Article 9 and the issues of conscience should not have been raised under Article 1 of Protocol No. 1.
For all these reasons we are of the view that the Grand Chamber should not have followed the approach developed by the Chamber in Schneider, but should have favoured a narrow interpretation of the case-law on human rights issues arising out of the legislation on hunting, as originally developed in Chassagnou.
On the basis of a narrow interpretation of the judgment in Chassagnou, it is clear that the regulations laid down by the German hunting legislation differ substantially from those criticised by the Grand Chamber in Chassagnou. The German law does not regulate a leisure activity, but deals with the general management of game stocks, combines rights and duties, includes the landowners in a self-managing decision-making body and allows them to claim a share of the profits, compensation for damage and insurance payments. It is applied comprehensively throughout the country without providing for any personal exemptions. The reform of the federal system has not altered the nationwide application of the relevant regulations. We therefore believe that the arguments advanced in the Chamber judgment of the Fifth Section on 20 January 2011 are pertinent and convincing (see §§ 45-56 of the Chamber judgment).
Moreover, the situation in the specific case has to be taken into account. While it is true that human rights protection has to be practical and effective and not theoretical or illusory, it is also true that the Court should take into account whether there is a real or only a theoretical human rights problem. In the case at hand the applicant inherited the land from his mother in 1993 and has de iure been a member of a hunting association since then. Nevertheless, he complained about a human rights violation only in 2003, that is to say ten years later, allegedly – as his lawyer stated at the hearing – because he had been unaware of the fact that he was a member of a hunting association. In real human rights cases applicants know (and feel) that their rights are being violated. Furthermore, the applicant did not have any knowledge about the use of his land, being unaware that animals were being raised there for slaughter. There are no indications of any damage to his property or any other visible or tangible problems caused by the application of the legislation in force. Likewise, he never tried to influence the other members of the hunting association, although he claimed that the latter had some discretion, for instance to reduce the range of species to be hunted (see paragraph 97 of the judgment). Finally, he did not allege that he had ever witnessed a hunt on his property.
All in all, the Court has allowed itself to be drawn unnecessarily into the micromanagement of problems which do not need a solution at European level and would be better solved by national Parliaments and the national hunting authorities. In our view this is an excellent example of a case in which the principle of subsidiarity should be taken very seriously.
[1] “Mankind’s true moral test, its fundamental test (which lies deeply buried from view), consists in its attitude towards those who are at its mercy: animals.” In Milan Kundera, The Unbearable Lightness of Being, 1984.
[2] See Akkum and Others v. Turkey, no. 21894/93, § 276, ECHR 2005-II, and Dogan and Others v. Turkey, nos. 8803-8811/02, 8813/02 and 8815-8819/02, § 54, ECHR 2004-VI.
[3] See López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303-C, and Guerra and Others v. Italy, 19 February 1998, § 60, Reports of Judgments and Decisions 1998-I.
[4] See Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, § 59, 26 July 2011. The Court’s willingness to assess the impact of urban development policy on protected species had been made clear previously in Kyrtatos v. Greece, no. 41666/98, § 53, ECHR 2003-VI.
[5] On the preventive slaughter of animals see Chagnon and Fournier v. France, nos. 44174/06 and 44190/06, § 57, 15 July 2010.
[6] On the supervision of slaughterhouses see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 77, ECHR 2000-VII.
[7] See Verein gegen Tierfabriken Schweiz (Vgt) v. Switzerland (no. 2) [GC], no. 32772/02, § 92, ECHR 2009, and Vgt Verein gegen Tierfabriken v. Switzerland, no. 24699/94, §§ 70, 71 and 75, ECHR 2001-VI (rearing of animals); Steel and Morris v. the United Kingdom, no. 68416/01, §§ 89 and 95, ECHR 2005-II (fast-food meat industry); Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 28, ECHR 1999-VIII (hunting saboteurs); Steel and Others v. the United Kingdom, 23 September 1998, § 92, Reports 1998-VII (hunting saboteurs); Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 63 and 73, ECHR 1999-III (brutal killing of animals); and Barthold v. Germany, 25 March 1985, § 58, Series A no. 90 (lack of availability of veterinary surgeons during the night).
[8] See Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III, and Friend and Countryside Alliance v. the United Kingdom (dec.), no. 16072/06 and no. 27809/08, §§ 43-44, 24 November 2009.
[9] See Cha’are Shalom ve Tsedek, cited above, § 82.
[10] See the 1972 Stockholm Declaration approved at the UN Conference on the Human Environment, the preamble to the World Charter for Nature approved by the UN General Assembly (UNGA RES 37/7, 1982), paragraph 11 of the preamble and Article 17 of the Universal Declaration on Bioethics and Human Rights adopted by the General Conference of UNESCO on 19 October 2005, and at treaty level, the 1971 Ramsar Convention on Wetlands of International Importance, the 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals, the 1980 Canberra Convention for the Conservation of Antarctic Marine Living Resources and the 1992 Rio Convention on Biological Diversity.
[11] See the African Convention on the Conservation of Nature and Natural Resources, adopted in 1968 in Algiers, and its 1982 Protocol.
[12] See the 1992 Managua Convention for the Conservation of the Biodiversity and the Protection of Wilderness Areas in Central America and the 1993 Guatemala Regional Convention on the management and conservation of natural forest ecosystems and forest plantation development.
[13] See the 1985 Kuala Lumpur Agreement on the Conservation of Nature and Natural Resources, which was anticipated by the 1976 Convention on the Conservation of Nature in the South Pacific.
[14] Within the WTO the most significant case was the shrimp-turtle case, India et al. v. U.S. The WTO Panel ruling of 6 November 1998, modified by the WTO Appellate Body ruling of 21 November 2001, concerning the US ban on the import of certain shrimp and shrimp products from India and other countries, recognised under WTO rules the right to protect animal or plant life and health and to take measures to conserve exhaustible resources.
[15] See the Terrestrial Animal Health Code, which includes standards on, inter alia, transport of animals by land, sea or air, slaughter of animals for human consumption, killing of animals for disease control purposes, control of stray dog populations and use of animals in research and education.
[16] Soft law has also been an important political instrument for the implementation of a European standard of animal welfare. For that purpose the Parliamentary Assembly approved Recommendation 287 (1961) on the international transit of animals, Recommendation 621 (1971) on the problems arising out of the use of live animals for experimental or industrial purposes, Recommendation 620 (1971) on problems of animal welfare in industrial stock-breeding, Recommendation 641 (1971) on animal welfare in industrial stock-breeding, Order 326 (1972) on an information campaign on animal welfare, Recommendation 709 (1973) on slaughter methods for meat animals, Recommendation 825 (1978) on protection of wildlife and on seal hunting, Recommendation 860 (1979) on dangers of over-population of domestic animals for the health and hygiene of man and on humane methods of limiting such dangers, Order 419 (1983) on protection of animals in experimental procedures, Recommendation 1084 (1988) on the situation of zoos in Europe, Recommendation 1143 (1991) on relations between animal husbandry and the quality of the environment, Resolution 1012 (1993) on marine mammals, Recommendation 1289 (1996) on animal welfare and livestock transport in Europe, Opinion 245 (2003) on the draft revised Convention for the protection of animals during international transport, Recommendation 1689 (2004) on hunting and Europe’s environmental balance, and Recommendation 1776 (2006) on seal hunting.
[17] In its judgment in case C-416/07, the Court of Justice of the European Union decided that Greece had failed to fulfil its obligations under Council Directive 91/628/EEC and Council Directive 93/119/EC to ensure, inter alia, that the rules on the stunning of animals at the time of slaughter were complied with and that inspections and controls in slaughterhouses were carried out in an appropriate manner.
[18] Specific legislation has been enacted on laying hens (Council Directive 1999/74/EC), chickens kept for meat production (Council Directive 2007/43/EC), calves (Council Directive 2008/119/EC), pigs (Council Directive 2008/120/EC), wild animals kept in zoos (Council Directive 1999/22/EC) and on special animal welfare standards for cattle, pig and poultry production in organic farming (Council Regulation (EC) 834/2007 and Commission Regulation (EC) 889/2008). Two recent pieces of legislation, Directive 2007/43/EC and Regulation (EC) 1099/2009 on the protection of animals at the time of killing, introduced outcome-based animal welfare indicators. In addition, the Commission adopted the Community Action Plan on the Protection and Welfare of Animals 2006-2010 (COM(2006)13final), which was followed by the European Union Strategy for the Protection and Welfare of Animals 2012-2015 (COM(2012)6final/2).
[19] The expression is drawn from Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002-VI.
[20] For the intrinsic value of nature see the preamble to the 1979 Berne Convention on the Conservation of European Wildlife, cited above, the preamble to the World Charter for Nature, cited above, Article 3 of the 1991 Protocol to the Antarctic Treaty on Environmental Protection and the preamble to the 1992 Rio Convention on Biological Diversity. The intrinsic value of all species has been expressed in the German-speaking countries by the felicitous expressions “fellow creatures” (Mitgeschöpfe, introduced in 1986 in section 1 of the German Tierschutzsgesetz) or “dignity of creatures” (Würde der Kreatur, enshrined in 1992 in Article 120 of the Swiss Federal Constitution), both inspired by the teachings of Fritz Blanke (“Wir sind, ob Mensch oder Nichtmensch, Glieder einer grossen Familie. Diese Mitgeschöpflichkeit (als Gegenstück zur Mitmenschlichkeit) verpflichtet”, in Unsere Verantwortlichkeit gegenüber die Schöpfung, in Festschrift Brunner, Zurich, 1959, p. 195). The same understanding is reflected in the expression “sensitive being” (être sensible) of article L. 214-1 of the French Rural Code, which encompasses “the mental health” (santé psychique) of the animal, as interpreted by the judgment of the Paris Court of Appeal of 14 November 2011.
[21] Article 14 (2) of the Universal Declaration on Animal Rights adopted by the International League of Animal Rights and Affiliated National Leagues in the course of an International Meeting on Animal Rights which took place in London in September 1977, and the preamble to and Article 1 of the Universal Declaration of Animal Rights, proclaimed on 15 October 1978 at UNESCO headquarters and revised by the International League of Animal Rights in 1989. While these texts affirm the existence of “animal rights” within the context of biological equilibrium, they also clearly state that the acknowledgment of these rights does not overshadow the diversity of species and of individuals.
[22] See Balluch v. Austria, no. 26180/08, application lodged on 4 May 2008 by an animal protection activist on behalf of a chimpanzee, and rejected by a committee of the First Chamber for incompatibility ratione materiae. The same happened in Stibbe v. Austria, no. 26188/08, application lodged on 6 May 2008.
[23] That same sense of mankind’s responsibility for animal life and welfare has been stressed by the UNGA in the preamble to the World Charter for Nature, by UNESCO in paragraph 11 of the preamble to and Article 17 of the Universal Declaration on Bioethics and Human Rights and by the Council of Europe in Recommendation (91)7 on the slaughter of animals, the Convention for the Protection of Vertebrate Animals used for Experimental and Other Scientific Purposes and the Convention for the Protection of Pet Animals.
[24] On the restriction of the right to property on environmental protection grounds, see Fredin v. Sweden (no. 1), 18 February 1991, § 48, Series A no. 192; Pine Valley Developments Ltd and Others v. Ireland, 29 November 1991, § 57, Series A no. 222; Saliba v. Malta, no. 4251/02, § 44, 8 November 2005; and Hamer v. Belgium, no. 21861/03, § 79, ECHR 2007-V.
[25] For instance, freedom of expression does not cover any form of art which tortures animals, or the commercial creation, sale or possession of certain depictions of animal cruelty such as “crush videos”, which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish (see the opinion of Justice Alito in United States v. Stevens, 559 U.S. (2010)).
[26] The same argument was made by the Federal Constitutional Court in its judgment of 13 December 2006, paragraph 26.
[27] In page 35 of his application to the Federal Constitutional Court, the applicant considers himself as a tierliebender Mensch (animal-loving person).
[28] In modern times, the philosophical question of the nature of animals started with a simple question, which was nonetheless full of meaning, posed by Michel de Montaigne in Apology for Raymond Sebond, 1580: “When I play with my cat, who knows whether I do not make her more sport than she makes me? We mutually divert one another with our play”.
[29] Rousseau, Discourse on the Origin of Inequality, 1754: “… we put an end to the time-honoured disputes concerning the participation of animals in natural law: for it is clear that, being destitute of intelligence and liberty, they cannot recognize that law; as they partake, however, in some measure of our nature, in consequence of the sensibility with which they are endowed, they ought to partake of natural right; so that mankind is subjected to a kind of obligation even toward the brutes.”
[30] Voltaire, Philosophical Dictionary, 1764: “What a pitiful, what a sorry thing to have said that animals are machines bereft of understanding and feeling, which perform their operations always in the same way, which learn nothing, perfect nothing, etc.!”
[31] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, 1789: “The day may come when the rest of the animal creation may acquire those rights which never could have been withheld from them but by the hand of tyranny. … What else is it that should trace the insuperable line? Is it the faculty of reason or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day or a week or even a month, old. But suppose the case were otherwise, what would it avail? The question is not, Can they reason?, nor Can they talk? but, Can they suffer?”
[32] Schopenhauer, On the Basis of Morality, 1839: “The moral incentive advanced by me as the genuine, is further confirmed by the fact that the animals are also taken under its protection. In other European systems of morality they are badly provided for, which is most inexcusable. They are said to have no rights, and there is the erroneous idea that our behaviour to them is without moral significance, or, as it is said in the language of that morality, there are no duties to animals…”
[33] Bertrand Russell, If Animals Could Talk, 1932: “There is no impersonal reason for regarding the interests of human beings as more important than those of animals. We can destroy animals more easily than they can destroy us; that is the only solid basis of our claim to superiority.”
[34] The Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002) ruled that the granting of exceptional authorisation for the slaughter of animals without previous stunning, on religious grounds, did not breach the German Basic Law.
[35] The German constitutional provision includes, according to the explanatory memorandum to the Constitutional Reform Act of 26 July 2002, a threefold guarantee: “the protection of animals against improper treatment of the species, avoidable suffering and destruction of their living space” (den Schutz der Tiere von nicht artgemässer Haltung, vermeidbaren Leiden sowie der Zerstörung ihrer Lebensräume, BT-Drucks. 14/8860, p. 3). Prior to the constitutional reform, the German Bundestag had already declared, on 30 June 1994, that animals also formed part of the “natural foundations of life” and that the protection of species and their living space therefore fell within the constitutional ambit of ecological protection. The novelty of the constitutional reform lies in the additional protection afforded to “individual animals” (einzelne Tiere), based on their “capacity for suffering” (Leidensfähigkeit).
[36] On the protection of animals as a “principle of assessment and interpretation” (Abwägungs and Auslegungsgrundsatz) when public decisions are taken and when conflicts with constitutional rights arise, see, among other authorities, Hirst/Maisack/Moritz, Tierschutzgesetz, Kommentar, München, 2007, pp. 59-71; Kloepfer, Umweltrecht, München, 2004, pp. 62, 945-946, 963; Scholz, annotations 7, 49, 70, 76, 79 and 84 to Article 20a, in Maunz/Dürig, Grundgesetz Kommentar, III, München; Caspar and Schröter, Das Staatsziel Tierschutz in Art.20a GG, Bonn, 2003, p. 47-49, 94; and Caspar and Geissen, Das neue Staatsziel “Tierschutz” in Art. 20a GG, in NVwZ, 2002, p. 916).
[37] Federal Constitutional Court judgment of 13 December 2006, paragraph 16, and Federal Administrative Court judgment of 14 April 2005, paragraph 23.
[38] BVerfGE 12, 45 - Kriegsdienstverweigerung I, 20 December 1960.
[39] See Chassagnou and Others, cited above, § 114. This statement of principle was reiterated in Schneider v. Luxembourg, no. 2113/04, § 82, 10 July 2007.
[40] See Chassagnou and Others, cited above, § 113.
[41] Contrary to the reasoning of the Federal Constitutional Court judgment of 13 December 2006, paragraph 25, and Federal Administrative Court judgment of 14 April 2005, paragraph 18.
[42] The conflict of conscience between obeying national law and upholding a higher ethical principle acknowledged by the international community has been articulated in Polednová v. the Czech Republic ((dec.), no. 2615/10, 21 June 2011), which reaffirmed the findings of K.-H.W. v. Germany ([GC], no. 37201/97, ECHR 2001-II). In these particular cases, the Court criticised the applicants precisely for their inability to uphold a higher ethical standard contrary to the one affirmed by national law.
[43] See the Federal Administrative Court judgment of 14 April 2005, paragraph 18.
[44] As the Council of Europe requires in its Convention for the Protection of Animals for Slaughter and the aforementioned Recommendation 91(7) and its Code of Conduct, and in Recommendation 1776 (2006), which considers “all … methods which do not guarantee the instantaneous death without suffering of animals” as “cruel hunting”.
[45] See Chassagnou and Others, cited above, § 85. This statement of principle was reiterated in Schneider, cited above, § 51.
[46] The emblematic case is Cossey v. the United Kingdom (27 September 1990, § 32, Series A no. 184), where the Court considered that the case was distinguishable on its facts from the Rees case but was not persuaded that this difference was “material”.
[47] See, among other cases, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I; Bayatyan v. Armenia [GC], no. 23459/03, § 103, ECHR 2011; and Konstantin Markin v. Russia [GC], no. 30078/06, § 140, ECHR 2012. The geographical boundaries of this criterion are flexible. In Christine Goodwin, cited above, § 85, the Court attached “less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend”, quoting the legal situation in non-European countries.
[48] See Stafford v. the United Kingdom [GC], no. 46295/99, §§ 69 and 79, ECHR 2002-IV.
[49] See Demir and Baykara v. Turkey [GC], no. 34503/97, § 85, ECHR 2008; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 105, 17 September 2009; and Bayatyan, cited above, §§ 104-107.
[50] See Christine Goodwin, cited above, §§ 83 and 92, and Vo v. France [GC], no. 53924/00, §§ 82 and 84, ECHR 2004-VIII.
[51] The very first judgment where the new Court stated clearly its animus mutandi with regard to uncertain case-law was Pellegrin v. France ([GC], no. 28541/95, §§ 60-63, ECHR 1999-VIII), whose terms were repeated, for instance, in Perez v. France [GC], no. 47287/99, §§ 54-56, ECHR 2004-I.
[52] See, for example, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §§ 56 and 57, ECHR 2007-II. As the Court stated in its seminal case Ireland v. the United Kingdom (18 January 1978, § 154, Series A no. 25): “The Court’s judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties”. Consequently, the Court rejected a strict originalist interpretation of the Convention based on the original intentions of its framers (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 71, Series A no. 310, and Mamatkulov and Abdurasulovic v. Turkey, nos. 46827/99 and 46951/99, § 94, 6 February 2003).
[53] See Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I, based on the thesis of an evolving interpretation of the Convention first put forward in Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26.
[54] See the joint concurring opinion in Yoh-Ekale Mwanje v. Belgium, no. 10486/10, 20 December 2011.
[55] See the Chamber judgment in Mamatkulov and Abdurasulovic, cited above, which found a violation of Article 34 for non-compliance with Rule 39 and thus departed from the precedent established in Cruz Varas and Others v. Sweden, 20 March 1991, § 102, Series A no. 201.
[56] See the Grand Chamber judgment in Mamatkulov and Askarov, cited above, which upheld the Chamber judgment and definitely overturned the previous Cruz Varas case-law.
[57] See the Federal Constitutional Court judgment of 13 December 2006, paragraph 22, and the Federal Administrative Court judgment of 14 April 2005, paragraph 20.
[58] The same happened in Luxembourg, where a mere 3.25 euros per year was afforded to each landowner (see Schneider, cited above, § 49).
[59] As the Federal Constitutional Court did in its judgment of 13 December 2006, paragraph 22.
[60] See Chassagnou and Others, cited above, § 92.