Chabauty v France 4 October 2012 – read judgment
I have posted previously on cases involving the ethical objection of landowners to being forced to allow hunting over their property.
These objections have generally found favour with the Strasbourg Court in the balancing of private and public interests under the right to property. Mr Chabauty puts the issue into another perspective. He also complained that he was unable to have his land removed from the control of an approved municipal hunters’ association. The difference was – and this proved to be critical to the outcome of the case – Mr Chabauty is not himself against hunting on ethical grounds. Since no conscience was underlying his Convention complaint, the Court found it not to be disproportionate for the French state to require small landowners to pool their hunting grounds. As such, there had been no violation of Article 1 Protocol 1 or Article 14.
Under French law, landowners in “agreed hunting areas” lose their exclusive hunting rights over their own land but have the right to hunt throughout the area covered by the municipal hunting association, or “ACCA’s” hunting grounds. If a landowner’s property is above a certain acreage he can object to inclusion in such hunting grounds and seek withdrawal, but in the applicant’s case the area of his land was below this threshold. Mr Chabauty wrote to the association drawing their attention to the Chassagnou case law from Strasbourg on this issue and the fact that the Court had ruled that there was no objective or reasonable justification for obliging landowners, by means of compulsory transfer, to join an ACCA against their wishes. He added that large and small landowners could not be treated differently, because that would run counter to Article 1 of Protocol No. 1 (protection of property) taken together with Article 14 (prohibition of discrimination) of the Convention. When his request was refused and his challenge failed in local courts, he petitioned Strasbourg, complaining that he was unable to have his land removed from the municipal association’s hunting grounds, as he was not against hunting on ethical grounds and the area of his land fell below a certain threshold. He wished to derive benefit from it by leasing it for hunting.
The application was refused.
The Court’s reasoning
The Court distinguished Mr Chabauty’s case from Chassagnou and the Hermann case earlier this year (see my post) on the basis that the solution in both those cases were concerned with the category of landowners opposed to hunting for ethical reasons. The fact that only small landowners were obliged to tolerate the use of their property against their conscience made the law disproportionate and therefore in breach of Article 1 Protocol 1 taken together with Article 14. Therefore, as Mr Chabauty was not opposed to hunting on ethical grounds, no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 could be inferred in the present case from the judgment in Chassagnou and Others.
Without the element of ethical objection, the discrimination as between large and small landowners was justified. The Court regarded as convincing the explanations furnished by the French Government to the effect that, in establishing the principle of pooling small hunting grounds within ACCAs, the legislature had sought to remedy the problem of increasing scarcity of game, particularly in regions where properties were very fragmented. It was understandable that the legislature should have deemed it unnecessary to impose the pooling of land on landowners who already had a large area, enabling better management of game stocks.
One can understand the Court’s position on this set of facts. To put it bluntly, it didn’t see why the applicant should be allowed to have his cake and eat it. But the judgment doesn’t stand up to much analysis. What if Mr Chabauty, without his ethical objections to hunting, had wanted not to profit by permitting hunting on his land, but to turn his property into a (profit-making) wildlife sanctuary? Why should personal belief – so difficult to verify anyway – make such a difference to an important challenge to legislation? The Court seeks to counter the illogicalities in its own position by distinguishing this case from Chassagnou, but uses a series of own goals to do so. For a start, it seeks to rely on the change in French law that accommodated the Chassagnou ruling in respect of hunting objectors. Well of course the French legislature had to respond the way it did, otherwise the government would be in breach of international law. Then it refers to the line of conscience cases following Chassagnou - Baudinière and Vauzelle v. France (2007); Piipo v Sweden (2006); Nilssen v Sweden (2008); Schneider v Luxembourg (2007) and Hermann v Germany (2012), asserting that these cases
confirm – even if the Court does not rule on compliance with Article 14 – the importance which this line of case-law attaches to the issue of respect for the choices made on grounds of conscience by landowners opposed to hunting.
But this does not go any distance towards explaining why Mr Chabauty’s position is so different. In Chassagnou the Court found that the legitimate aim advanced by the government for this discriminatory hunting system was full of holes (paras 92-94). Specifically, the court was not convinced by the Government’s explanation as to how the obligation for small landowners alone to participate in the system addressed the need to pool small plots of land with the aim of promoting the rational management of game stocks. Now, far from questioning the legitimacy of this aim, the Court relies on it as a basis for a new type of ecological legitimacy:
“[i]n thus seeking to control the impact of hunting on the ecological balance, the [French legislation] is aimed at the protection of the natural environment, an aim which, as the Court has held on numerous occasions, is indisputably in the general interest” (para 54)
Of course the Court is free to change its mind on this and other matters (which it frequently does). But a legislative measure whose legitimacy caused considerable doubt in a pro-applicant decision surely cannot be the grounds why an applicant should lose in another case where the facts are virtually indistinguishable.
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