CASE OF CHABAUTY v. FRANCE
No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 2 of Protocol No. 1 - Control of the use of property;General interest;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)
Anatoly Kovler;André Potocki;Angelika Nußberger;Ann Power-Forde;David Thór Björgvinsson;Dean Spielmann;Françoise Tulkens;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza
8. The applicant was born in 1934 and lives in Airvault. 9. The applicant inherited two plots of land in the municipality of Louin (département of Deux-Sèvres) with a total surface area of approximately ten hectares, which are included in the hunting grounds of the Louin approved municipal hunters’ association (association communale de chasse agréée – “ACCA”). He holds a hunting permit. 10. In France, hunting rights over land belong in principle to the landowner. However, Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, provides for the pooling of hunting grounds within ACCAs. The creation of an ACCA in each municipality is compulsory in twenty-nine of the ninetythree départements of metropolitan France excluding Bas-Rhin, Haut-Rhin and Moselle, including in DeuxSèvres; in the remainder of those ninety-three départements it is optional. Landowners whose property forms part of the hunting grounds of an ACCA in this way automatically become members of the association. They lose their exclusive hunting rights over their own land but have the right to hunt throughout the area covered by the ACCA. However, the owners of land with a surface area above a certain threshold may object to the inclusion of their land in the ACCA’s hunting grounds or request its removal from them (in the département of DeuxSèvres, the threshold is twenty hectares, which corresponds to the statutory minimum area). Since the entry into force of Law no. 2000-698 of 26 July 2000, landowners “who, being opposed to hunting as a matter of personal conviction, prohibit hunting, including by themselves, on their property” also have this option, irrespective of the surface area of their land (see paragraphs 18-23 below). 11. In a letter of 12 August 2002 the applicant informed the Prefect of Deux-Sèvres that he wished to “object to the practice of hunting by the Louin ACCA on [his] plots of land” “as a matter of personal conviction”. On 23 September 2002 the Prefect informed him of the procedure to follow in order to have his land removed from the ACCA’s hunting grounds on account of his opposition to hunting for reasons of conscience. 12. On 17 December 2003 the applicant again wrote to the Prefect, applying to have his land removed from the Louin ACCA’s hunting grounds. He stated as follows: “... My application to have the land removed is not based on personal convictions but on the fact that the European Court of Human Rights, and subsequently the national administrative courts, have ruled ... that ‘while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks, there does not appear to be any objective and reasonable justification for obliging landowners, by means of compulsory transfer, to join an approved municipal hunters’ association against their wishes.’ It is clear from these different court rulings that large and small landowners cannot be treated differently on the basis of provisions which are contrary to Article 1 of Protocol [No. 1] taken in conjunction with Article 14 of [the] Convention. As I own only 10 hectares, 12 ares and 74 centiares, I would kindly request you to grant me permission, by means of a reasoned administrative decision, to immediately remove from the hunting grounds of the Louin ACCA the plots of land entered in section ... of the land register...” 13. On 6 February 2004 the Director of Agriculture and Forestry of the Deux-Sèvres Prefecture informed the applicant that his application had been rejected. Noting that the applicant was no longer citing his original reasons relating to personal convictions, but instead relied on Article 14 of the Convention and Article 1 of Protocol No. 1, the Director wrote as follows: “... the provisions of the Law of 26 July 2000 and of the Environmental Code, and in particular Articles L. 422-10 and L. 422-13 thereof, were designed to bring the domestic law into line with the case-law of the Court ... by providing that only landowners who do not hunt and who are opposed to hunting as a matter of personal conviction have a right to raise objections to hunting irrespective of the surface area of their land, while maintaining the requirement for owners of land below a certain threshold (twenty hectares in Deux-Sèvres) to transfer the hunting rights over their land to the ACCA. Our enquiries have revealed that you are the holder of a valid hunting permit for the current hunting season. As a result ..., pursuant to Article L. 422-13 of the Environmental Code, I must inform you that I am unable to grant your request and that the land you seek to have removed shall remain within the hunting grounds of the Louin ACCA. ...” 14. On 23 March 2004 the applicant requested the Prefect of DeuxSèvres to reconsider the decision. On 6 April 2004, having received no reply, he applied to the Poitiers Administrative Court for judicial review of the implicit refusal constituted by the Prefect’s failure to reply, and of the decision of 6 February 2004. 15. On 23 March 2005 the Poitiers Administrative Court allowed the application, in a judgment containing the following reasoning: “...while different treatment of persons in a comparable situation may be justified by the general interest resulting in particular from the need to ensure coherent and efficient management of game stocks, there does not appear to be any objective and reasonable justification for obliging landowners, by means of compulsory transfer, to join an approved municipal hunters’ association against their wishes. ... thus, the difference in treatment between large and small landowners is contrary to Article 1 of Protocol [No. 1] read in conjunction with Article 14 of [the] Convention. ...” 16. The Louin ACCA applied to the Bordeaux Administrative Court of Appeal to have that judgment set aside, arguing that, as a hunter himself, the applicant could not claim to be a victim of a Convention violation. The Administrative Court of Appeal rejected the application in a judgment of 18 July 2006. It considered that the Director of Agriculture and Forestry had not been competent to sign the decision of 6 February 2004, which was therefore unlawful, as was the implicit refusal. Accordingly, the court concluded that the Louin ACCA had no grounds for contesting the settingaside of the decisions in question. 17. On an application by the Louin ACCA, the Conseil d’Etat, in a judgment of 16 June 2008, quashed the judgment of the Bordeaux Administrative Court of Appeal. It held that the latter had committed an error of law in ruling that the Director of Agriculture and Forestry had not been competent to sign the decision in question, since he had been properly delegated to sign documents in the sphere concerned. Ruling on the merits, the Conseil d’Etat went on to quash the judgment of the Poitiers Administrative Court of 23 March 2005 and rejected the applicant’s application for judicial review. The Conseil d’Etat held, inter alia, as follows: “... The evidence in the file shows that Mr Chabauty, who owns land with a surface area below that specified in paragraph 3 of Article L. 422-10 of the Environmental Code, requested the removal of his land not on the grounds that he was opposed to hunting as a matter of personal conviction, as permitted by the fifth paragraph of that Article, but on the grounds that he wished to reserve the hunting rights over his land for his own use without allowing the members of the ACCA to benefit from them. The system of approved hunters’ associations was devised on general-interest grounds to prevent the unregulated exercise of hunting and promote rational use of game stocks. Landowners who hunt and who transfer the rights over their land are automatically entitled, in accordance with Article L. 422-21 of the Environmental Code, to membership of the hunters’ association and, accordingly, to hunt throughout the association’s hunting grounds. Thus, the owners of land with a surface area below that specified in the third paragraph of Article L. 422-10 of the Code have a choice between relinquishing their hunting rights on the grounds that they are opposed to hunting as a matter of personal conviction or transferring the hunting rights over their land to the ACCA in exchange for the compensatory benefits referred to above. Accordingly, the system does not constitute disproportionate interference with the right to property and is not in breach of Article 1 of [Protocol No. 1]. The difference in treatment under the law between small and large landowners was introduced in the interests of hunters who own small plots of land, who can thus band together in order to obtain larger hunting grounds. Thus, this difference in treatment is based on objective and reasonable grounds and, since the owners of small plots remain free to use their land for a purpose in keeping with their conscience, the system in issue is not in breach of Article 1 of [Protocol No. 1] taken in conjunction with Article 14 of [the] Convention. It follows from the above that the Administrative Court incorrectly based its ruling on a breach of [these provisions] in setting aside the impugned decisions...” 18. In principle, hunting rights over land belong to the landowner. Article L. 422-1 of the Environmental Code states that “[n]o one shall have the right to hunt on land belonging to another without the consent of the owner or any person entitled through or under the owner”. However, the legislature deemed it necessary for hunting grounds to be “pooled” in some cases. This was the purpose of Law no. 64-696 of 10 July 1964, known as the “Loi Verdeille”, which is applicable in the départements of metropolitan France other than Bas-Rhin, Haut-Rhin and Moselle and provides for the establishment of approved municipal and intermunicipality hunters’ associations (“ACCAs” and “AICAs”). 19. The ACCAs pool hunting grounds at municipal level. Under Article L. 422-2 of the Environmental Code, in the version applicable at the material time, they are “designed to ensure sound technical organisation of hunting. They shall encourage, on their hunting grounds, an increase in game stocks and wildlife while preserving a genuine balance between agriculture, forestry and hunting, provide instruction to their members in hunting-related matters and ensure the control of vermin and compliance with hunting plans ... Their role is also to ensure that hunters contribute to the conservation of natural habitats and wild flora and fauna”. The ACCAs are subject to the ordinary law on associations (Law of 1 July 1901) and to the specific provisions of the Loi Verdeille and the regulatory instruments implementing it (Articles L. 422-1 et seq. and Articles R. 422-1 et seq. of the Environmental Code). The prefect issues approval after checking that the requisite formalities have been completed and that the association’s constitution and internal rules conform to the statutory requirements (Articles L. 422-3 and R. 422-39 of the Environmental Code). The prefects are responsible for supervising the ACCAs, and any change to their constitutions, internal rules or hunting regulations must be submitted to the prefect for approval (Articles R. 422-1 and R. 422-2 of the Environmental Code). In the event of a breach by the ACCA of its constitution or hunting regulations or of damage to property, crops or public freedoms, or of a general breach of the relevant regulatory provisions (Articles R. 422-1 et seq. of the Environmental Code), the prefect may also adopt interim measures such as the suspension of hunting on all or part of the association’s hunting grounds or the dissolution of its executive committee (Article R. 422-3 of the Environmental Code). 20. The creation of ACCAs is mandatory only in certain départements named on a list drawn up by the Minister responsible for hunting on a proposal by the representative of the State in the relevant département, supported by the département council, and after prior consultation of the Chamber of Agriculture and the Hunters’ Federation in that département (Article L. 4226 of the Environmental Code). Twenty-nine of the ninetythree metropolitan départements other than Bas-Rhin, Haut-Rhin and Moselle are concerned. In the remainder of those ninety-three départements the representative of the State draws up a list of municipalities where an ACCA is to be set up. The decision is taken on an application by anyone who can furnish evidence that at least 60% of landowners holding at least 60% of the land in the municipality agree to set up an association for a minimum five-year period (Article L. 422-7 of the Environmental Code). 21. Landowners whose land is included in an ACCA’s hunting grounds are automatically members of the association (Article L. 422-21 of the Environmental Code). They lose their exclusive hunting rights over the land but, as members, have the right to hunt throughout the association’s hunting grounds in accordance with its regulations (Articles L. 422-16 and L. 42222 of the Environmental Code). The transfer of hunting rights entitles the landowner to compensation, payable by the ACCA, for any loss of profits caused by being deprived of a previous source of income. The ACCA is also obliged to pay compensation to owners of hunting rights who have “made improvements to the land over which they have hunting rights” (Article L. 422-17 of the Environmental Code). 22. Article L. 422-10 of the Environmental Code provides: “A municipal hunters’ association shall be established on lands other than those: 1. within a radius of 150 metres of any dwelling; 2. enclosed by a fence as defined in Article L. 424-3 [Article L. 424-3 provides that ‘... the owner of the land or the hunting rights may, at any time, hunt or arrange for the hunting of game animals on his or her land adjoining a dwelling and surrounded by a continuous and unbroken fence, forming an obstacle to any communication with neighbouring properties and incapable of being breached by game animals or by human beings’]; 3. forming an uninterrupted area greater than the minimum area referred to in Article L. 422-13 and in relation to which the owners of the land or of the hunting rights have filed objections; 4. constituting public property belonging to the State, a département or a municipality or forming part of a public forest, or belonging to the French Rail Network or the French National Railway Company. 5. in relation to which objections have been filed by individual owners, or unanimously by several co-owners acting jointly, who, being opposed to hunting as a matter of personal conviction, prohibit hunting, including by themselves, on their property, without prejudice to the effects of owner liability, and particularly liability for damage caused by game from their lands. ...” The fifth paragraph was added by Law no. 2000-698 of 26 July 2000 (published in the Official Gazette on 27 July 2000) for the purposes of executing the Court’s judgment in Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999III) (see paragraph 24 below). Articles L. 422-13, L. 422-14 and L. 422-15 of the Environmental Code further specify as follows: “I. In order to be admissible, an objection by the owners of land or hunting rights referred to in the third paragraph of Article L. 422-10 must relate to at least twenty hectares of land in a single block. II. That minimum shall be lowered in respect of waterfowl shooting 1. to three hectares for undrained marshland; 2. to one hectare for isolated ponds; 3. to fifty ares for ponds where, on 1 September 1963, there were fixed installations, shelters or hides. III. The minimum shall be lowered in respect of hunting for birds of the family Colombidae to one hectare for land where, on 1 September 1963, there were fixed structures used for that purpose. IV. The minimum shall be raised to one hundred hectares for land in mountain areas above the tree-line. V. Orders made for each département under the conditions laid down in Article L. 422-6 may increase the minimum areas thus defined. These increases may not bring the new figure to more than twice the minimum laid down above.” “The objections referred to in paragraph 5 of Article L. 422-10 shall be admissible provided that they relate to all the land belonging to the owner or co-owners in question. Such objections shall entail relinquishment of the exercise of hunting rights on the land ...” “Persons who have filed an objection shall be required to erect signs on their land to the effect that hunting is prohibited. Owners of land or hunting rights who have filed an objection shall take steps to destroy vermin and to control the presence on their land of species that cause damage. The crossing by hounds of land designated as a reserve or which is the subject of an objection under the third and fifth paragraphs of Article L. 422-10 shall not be considered as hunting on a reserve or on land belonging to another, except where the hunter has incited the hounds to enter the land.” 23. The Government stated that when an ACCA was being set up the owners of land not attaining the statutory minimum area or of hunting rights over such land could prevent the inclusion of their property in the ACCA’s hunting grounds by banding together to create a single block of land which exceeded the minimum area (Articles L. 422-10, third paragraph; R. 422-21; and R. 422-22 I, second paragraph, of the Environmental Code). 24. On 25 April 2005 the Committee of Ministers of the Council of Europe adopted the following Resolution (ResDH(2005)26): “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”), Having regard to the final judgment of the European Court of Human Rights in the case of Chassagnou and others... ... Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention; Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 29 April 1999, having regard to France’s obligation under Article 46, paragraph 1, of the Convention to abide by it; Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the individual and general measures taken in particular the amendment of Law No. 64696 of 10 July 1964 (the so-called “Verdeille Act”) which was criticised by the European Court in its judgment, so as to admit conscientious objection to hunting and thus avoid further violations similar to those found by the European Court against persons opposed to hunting (see the appendix to this resolution); ... Declares, after having examined the information supplied by the Government of France, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case. Information provided by the Government of France during the examination of the case of Chassagnou and others by the Committee of Ministers ... To give full effect to the Court’s judgment, Act No. 64-696 of 10 July 1964 (“the Verdeille Act”), impugned by the Court, has been amended, giving those opposed to hunting the right to object to it on grounds of conscience. Act No. 2000-698 on hunting, which introduces this amendment, was adopted on 26 July 2000 and published in the official gazette on 27 July 2000. Under Section 14 of that Act (the present Article L422-10 of the Environmental Code): ‘The municipal association [the licensed municipal hunting association – ACCA] shall be established on lands other than those: ... 5. Covered by objections lodged by individual owners, or unanimously by several co-owners acting jointly, who are opposed to hunting for reasons of personal conviction, and who forbid hunting, also by themselves, on their lands, without prejudice to the effects of owner liability, and particularly liability for damage caused by game from their lands. When the owner is a corporation, the objection may be lodged by the chief executive of its decision-making body, duly authorised by it to do so.’ The government also notes that implementation of the provisions relating to the ACCA, as amended by the said Act of 26 July 2002, appears to have raised certain problems in respect of possibilities of withdrawing from the ACCA open to persons not wishing to plead objections of conscience. These problems have given rise to a number of proceedings which are still pending before the appeal courts, but in which the administrative courts based their first-instance judgments on principles derived from the Strasbourg case-law, and particularly the Chassagnou judgment. At all events, the government considers, in view of the direct effect in French law of the European Convention on Human Rights and the case-law of the European Court, that there is no longer any risk of further violations of the kind suffered by the antihunting applicants according to the Chassagnou judgment. ...”