Case nos 25088/94, 28331/95 and 28443/95
III. Alleged violation of Article 11 of the Convention taken separately
96. The applicants submitted that they had suffered an infringement of their freedom of association on account of the fact that pursuant to the relevant provisions of the Loi Verdeille they had against their will been made automatic members of an approved municipal hunters’ association, which the Law did not permit them to leave. They relied on Article 11 of the Convention. (...)
B. Compliance with Article 11
1. The existence of an interference
103. It was not contested by those who appeared before the Court that the obligation to join an ACCA imposed on the applicants by the Loi Verdeille was an interference with the “negative” freedom of association. The Court shares that opinion and will accordingly consider the complaint under Article 11 in the light of Article 9, since protection of personal opinions is one of the purposes of the freedom of association, which implies a negative freedom of association (see the Sigurður A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, p. 17, § 37).
2. Justification for the interference
104. Such interference breaches Article 11 unless it is “prescribed by law”, is directed towards one or more of the legitimate aims set out in paragraph 2 and is “necessary in a democratic society” for the achievement of that aim or aims.
(a) “Prescribed by law”
105. Those appearing before the Court agreed that the interference was prescribed by law, since the obligation for the applicants to join the ACCA of their municipality was imposed by the Loi Verdeille of 1964, and in particular by Articles L. 222-9 and L. 222-19 § 3 of the Countryside Code (see paragraphs 45 and 51 above).
(b) Legitimate aim
106. The Government submitted that the interference complained of had the legitimate aim of protecting the rights and freedoms of others. By providing for the pooling of small plots of land and requiring their owners to join an ACCA the Loi Verdeille sought to ensure democratic participation in hunting in order to give as many people as possible access to a leisure activity which would otherwise have been bound to remain the exclusive prerogative of the owners of large estates.
107. The applicants submitted, on the contrary, that hunting was nothing more than a leisure activity for those who took part in it. Although the applicants did not contest the right of hunters to enjoy and take part in hunting, they considered that it was not for Parliament to impose on those who were opposed to it the obligation to join hunters’ associations of whose aims and policies they viscerally disapproved.
108. The Commission considered that, while hunting was an ancient activity that had been engaged in for thousands of years, it was nevertheless true that with the development of agriculture, urbanisation and the evolution of new lifestyles its main purpose in the present day was to provide pleasure and relaxation to those who took part in it while respecting its traditions. However, the organisation and regulation of a leisure activity might also be a matter for which the State bore responsibility, particularly as regards its duty to ensure, on behalf of the community, the safety of people and property. The Court accordingly considers, like the Commission, that the legislation in issue pursued a legitimate aim for the purposes of paragraph 2 of Article 11 of the Convention.
(c) “Necessary in a democratic society”
109. The applicants submitted that it was not necessary in a democratic society to oblige people opposed on conscientious grounds to hunting as a leisure activity to become members of associations of hunters. Moreover, the fact that they had to join an ACCA prevented them from giving effective meaning to their membership of associations for the protection of nature, opposed to hunting for ethical reasons, since they could not transfer rights over their land to those associations in order to create nature reserves there.
110. The Government submitted that, as ACCAs were associations governed by the 1901 Act, the principles of the ordinary law on associations were applicable to them. Thus the members could freely decide how their association should be run and there was nothing to prevent non-hunting landowners, who like all other members were entitled to vote at the general meeting, from taking an active part in the life of the association. If they did not wish to do so, the obligation to join the ACCA did not have any coercive consequences, since under Article L. 222-19 of the Countryside Code non-hunters, while admittedly automatic members of the ACCA, were not required to pay a subscription or contribute to making up any deficit which the association might have.
In that respect, the situation of non-hunters was the opposite of the one which had given rise to the Court’s decision in the previously cited Sigurður A. Sigurjónsson case, since automatic membership of an ACCA was only the consequence of the transfer of rights over the land, not its precondition, whereas membership of the association in the Icelandic case had been the indispensable condition for carrying on an occupation.
111. The Court considers that the distinction the Government sought to draw between a landowner’s obligation to transfer rights over his land and his obligation, as a natural person, to join an association against his will seems artificial. It should be pointed out that the French parliament chose to provide for the compulsory transfer of hunting rights over land by means of compulsory membership of an association responsible for the management of the properties thus pooled. It is precisely recourse to the legal technique of the association which raises an issue in this case with regard to the right to freedom of association set forth in Article 11 of the Convention, as the question of the compulsory transfer of hunting rights over land is a matter which falls within the scope of the right to peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No. 1.
112. The Court reiterates that in assessing the necessity of a given measure a number of principles must be observed. The term “necessary” does not have the flexibility of such expressions as “useful” or “desirable”. In addition, pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. Lastly, any restriction imposed on a Convention right must be proportionate to the legitimate aim pursued (see the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 25, § 63).
113. In the present case the only aim invoked by the Government to justify the interference complained of was “protection of the rights and freedoms of others”. Where these “rights and freedoms” are themselves among those guaranteed by the Convention or its Protocols, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society”. The balancing of individual interests that may well be contradictory is a difficult matter, and Contracting States must have a broad margin of appreciation in this respect, since the national authorities are in principle better placed than the European Court to assess whether or not there is a “pressing social need” capable of justifying interference with one of the rights guaranteed by the Convention. It is a different matter 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. In such a case only indisputable imperatives can justify interference with enjoyment of a Convention right.
In the present case the Government pleaded the need to protect or encourage democratic participation in hunting. Even supposing that French law enshrines a “right” or “freedom” to hunt, the Court notes, like the Bordeaux Administrative Court (see paragraph 32 above), that such a right or freedom is not one of those set forth in the Convention, which does, however, expressly guarantee the freedom of association.
114. In order to determine whether it can be justified to require landowners opposed to hunting to join a hunters’ association, the Court has had regard to the following considerations.
The applicants are opposed to hunting on ethical grounds and the Court considers that their “convictions” in this respect attain a certain level of cogency, cohesion and importance and are therefore worthy of respect in a democratic society (see the Campbell and Cosans v. the United Kingdom judgment of 25 February 1982, Series A no. 48, pp. 16-17, § 36). Accordingly, the Court considers that the obligation for persons opposed to hunting to join a hunters’ association may appear, prima facie, to be incompatible with Article 11.
Moreover, an individual does not enjoy the right to freedom of association if in reality the freedom of action or choice which remains available to him is either non-existent or so reduced as to be of no practical value (see the previously cited Young, James and Webster judgment, p. 23, § 56).
115. Contrary to the Government’s assertion, the Court notes that in the present case the applicants do not have any reasonable chance of being able to resign their membership. The fact that their properties are included in the hunting grounds of an ACCA and that they do not own a large enough area of land to lodge an objection is sufficient to make their membership compulsory.
It was further submitted that landowners opposed to hunting were not obliged to take an active part in an ACCA’s activities. Although they did, admittedly, become automatic members, they were not obliged to pay a subscription or contribute to making good any deficit which the association might have. There had therefore not been the degree of compulsion necessary to justify the conclusion that there had been a violation of Article 11.
The Court considers that the fact that the applicants were only admitted to the ACCAs for form’s sake, as it were, solely on account of their status as landowners, takes nothing away from the compulsory nature of their membership.
116. The Court further observes that by Article L. 222-10 of the Countryside Code all public property belonging to the State, a département or a municipality, public forests and land belonging to the French National Railway Company are expressly excluded from the ambit of the Loi Verdeille (see paragraph 46 above). 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, including, in the present case, the municipalities of Tourtoirac and Chourgnac-d’Ans in Dordogne, where ACCAs were set up in 1977. 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.
117. In the light of the foregoing considerations, the arguments put forward by the Government are not sufficient to establish that it was necessary to compel the applicants to become members of the ACCAs in their municipalities despite their personal convictions. With respect to the need to protect the rights and freedoms of others to ensure democratic participation in hunting, an obligation to join an ACCA which is imposed on landowners in only one municipality in four in France cannot be regarded as proportionate to the legitimate aim pursued. Nor can the Court see why it might be necessary to pool only small properties while large estates, both public and private, are protected from democratic participation in hunting.
To compel a person by law to join an association such that it is fundamentally contrary to his own convictions to be a member of it, and to oblige him, on account of his membership of that association, to transfer his rights over the land he owns so that the association in question can attain objectives of which he disapproves, goes beyond what is necessary to ensure that a fair balance is struck between conflicting interests and cannot be considered proportionate to the aim pursued.
There has therefore been a violation of Article 11.
IV. Alleged violation of Article 11 of the Convention taken in conjunction with Article 14
118. The applicants submitted, for the reasons already put forward in connection with the alleged violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention, that they were victims of discrimination, firstly on the ground of property, in that large landowners could avoid any restriction of their right to freedom of association, and secondly as non-hunters, in that the interference with their freedom of association effected by the Loi Verdeille was to the exclusive benefit of hunters.
119. The Government rejected this argument, whereas the Commission accepted it.
120. The Court considers that examination of the complaint under Article 11 read in conjunction with Article 14 is in substance analogous to the examination conducted above with regard to Article 1 of Protocol No. 1 and it sees no reason to depart from its previous conclusion. It will confine itself to the observation that Article L. 222-13 of the Countryside Code does indeed create a difference in treatment between persons in comparable situations, namely the owners of land or hunting rights, since those who own 20 hectares or more of land in a single block may object to the inclusion of their land in the ACCA’s hunting grounds, thus avoiding compulsory membership of the association, whereas those who, like the applicants, possess less than 20 or 60 hectares of land may not.
121. The Court considers that the Government have not put forward any objective and reasonable justification for this difference in treatment, which obliges small landowners to become members of ACCAs but enables large landowners to evade compulsory membership, whether they exercise their exclusive right to hunt on their property or prefer, on account of their convictions, to use the land to establish a sanctuary or nature reserve. The Court notes that in the first case there is no explanation why properties of more than 20 hectares are not liable to be included in the ACCAs’ hunting grounds if, as the Government argued, the purpose of the ACCAs is to ensure democratic access to hunting.
In the second case, the Court considers that the distinction drawn between small and large landowners as regards the freedom to use their property for a purpose other than hunting has no pertinent justification.
In conclusion, there has been a violation of Article 11 of the Convention taken in conjunction with Article 14.back