Herrmann v Germany (Application no. 9300/07) 26 June 2012 – read judgment
The Grand Chamber of the European Court of Human Rights has ruled that the obligation of a landowner to allow hunting on his property violated his Convention rights. Although the majority based their conclusion on his right to peaceful enjoyment of possessions, the partially concurring and dissenting opinions and the judgment as a whole provide an interesting insight into the way freedom of conscience challenges are to be approached in a secular society where religion holds less sway than individual ethical positions on certain issues.
In 2002 the Federal Constitutional Court in Germany 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 Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002). The social uproar that followed the ruling led to the German constitutional legislature taking a significant step aimed at protecting animal welfare with the 2002 constitutional reform, by including Article 20a in the Basic Law:
“Mindful also of its responsibility toward future generations, the State shall protect the natural foundations of life and animals through legislation…”
The political motivation behind this clause was to give protection of animals “higher status”. As Judge Pinto di Albuquerque says in his partially dissenting judgment,
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. …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)
The applicant in this case invoked this provision in the German courts, along the right to freedom of conscience protected by Article 4 of the Grundgestez, in his challenge to the legislation that obliged him to belong to a hunting association and tolerate hunting on his land. After the Federal Constitutional Court declined to consider the applicant’s complaint he turned to Strasbourg, arguing that his compulsory membership of a hunting association and the obligation for him to tolerate hunting on his property violated his rights to peaceful enjoyment under Article 1 of Protocol No. 1 and his freedom of conscience under Article 9, both taken alone and in conjunction with the right to enjoy Convention rights without discrimination (Article 14) and the right not to be compelled to join associations, under Article 11 of the Convention.
The majority judgment
It was accepted that there had been an unjustified interference with Article 1 Protocol 1. The majority rejected the applicant’s contention that his rights to peaceful enjoyment of property had been violated in a manner which also engaged his rights not to be discriminated against under Article 14. The relevant provisions, went the argument, created a difference in treatment between the owners of smaller plots (such as the applicant) and the owners of larger plots in that the latter remained free to choose how to fulfil their obligation under the hunting legislation (either by carrying out the hunt themselves or leasing the hunting rights), whereas the former merely retained the right to participate in the hunting association’s decisions.
The Court took the view that this difference in treatment was justified, in particular by the need to pool smaller plots in order to allow for area-wide hunting and the effective management of the game stock. The freedom of association was rejected as entirely inapplicable since the Court concluded that a hunting association did not qualify as an “association” for the purposes of Article 11.
Tellingly, the majority backed away from any detailed consideration of the applicant’s complaint that his right to freedom of thought and conscience had been violated under Article 9. They found that any interference with his rights had been justified under paragraph 2 of that provision as being necessary in a democratic society, in the interests of public safety, and for the protection of public health and the rights of others.
Three dissenting judges objected to this case being admitted for consideration at all. They found that the Court had 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.
Judge Albuquerque filed an extremely interesting partially concurring and dissenting opinion which is considered below.
This kind of claim has come before the Strasbourg Court on a number of occasions, most notably in the 1999 French case of Chassagnou and Others where the Court accepted that the convictions of the applicants attained a certain level of cogency, and that the obligation to tolerate hunting on their lands constituted a disproportionate burden, incompatible with their Convention rights. The Grand Chamber acknowledged the precedental force of the Chassagnou and Schneider judgments:
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
Because it approached the Article 1 Protocol 1 point as dispositive of the issue, and refused to deal properly with Article 9, the Court failed to acknowledge the essential difference in structure between the right to property and the right to freedom of thought, conscience and religion which is protected under Article 9 of the Convention.
So how would this case have turned out if the majority had focussed on the applicant’s ethical position rather than his property rights? As Judge Albuquerque observes, animals and the ecological balance are at the centre of this case, as we see from the focus of the applicant’s claim before the German courts, Article 20a of Germany’s constitutional Basic Law.
So much for German law. The question of the protection of animals within the framework of the European Convention on Human Rights may not be as novel or as radical as first appears. Judge Albuquerque provides an impressive list of instances where the Court has accepted Convention arguments in various matters concerning animal welfare:
Verein gegen Tierfabriken Schweiz v . Switzerland (no. 2) no. 32772/02, § 92, ECHR 2009 (rearing of animals)[Grand Chamber- GC]; 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 (hunting saboteurs); Steel and Others v . the United Kingdom, 23 September 1998 (hunting saboteurs); Bladet Tromsø and Stensaas v . Norway [GC], no. 21980/93 (brutal killing of animals); and Barthold v. Germany (lack of availability of veterinary surgeons), Cha’are Shalom Ve Tsedek v . France [GC], no. 27417/95, and Kyrtatos v . Greece, no. 41666/98 and Georgel and Georgeta Stoicescu v . Romania, 26 July 2011, ( the impact of urban development policy on protected species), Chassagnou and Others and Friend and Countryside Alliance v . the United Kingdom, no. 16072/06 and no. 27809/08, 2009 (no Convention right to hunt).
These and many other cases indicate the “evolving position” of the Court, which in increasingly prepared to acknowledge that the protection of animal life and welfare is a derivative effect of a human right to property, freedom of expression and conscience, and a constitutive part of a healthy, ecologically balanced and sustainable environment. The protection of animals is 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”). In short, the Convention supports a qualified speciesism which builds upon a responsible anthropocentrism.
In his wide-ranging survey of international and regional instruments on the protection of animals and the promotion of their welfare, Judge Albuquerqe observes that the Strasbourg Court’s approach to this issue 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. The Protocol on protection and welfare of animals to the Treaty of Amsterdam is the most recent indication of the direction of travel in Europe on this “clear and uncontested evidence of a continuing international trend” .
Turning back to the instant case, it may be true that, as the German government argued, 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. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming conscientious objector status. But the government’s contention can be reversed. It is equally arguable that the blanket refusal of the applicant’s ethical stand, which has a solid philosophical basis in the German constitution as well as various international instruments and Convention case law, cannot be compatible with the legal order of a democratic state.
It is therefore very interesting that Judge Albuquerque was prepared to go along with the main ruling under Article 1 Protocol 1, but disagreed with regard to the finding that it was not necessary to examine separately the complaints under Article 9. The right to object to hunting on conscientious grounds comes within the ambit of protection of Article 9. Remember there is no counterbalancing Convention right to hunt (this was settled, if it ever needed to be, in Chassagnou).
It may be that in this sphere, freedom of conscience arguments are simply too sensitive and difficult to adjudicate. But at least the Court should have made the attempt:
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.