FIFTH SECTION

DECISION

Application no . 46531/08 Franz Ludwig WEYHE against Germany

The European Court of Human Rights (Fifth Section), sitting on 16 October 2012 as a Committee composed of:

Boštjan M. Zupančič , President, Ann Power-Forde , Angelika Nußberger , judges, and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 11 September 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Franz Ludwig Weyhe , is a German national, who was born in 1947 and lives in Remlingen .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is the owner of two plots of land with an overall area of less than 75 hectares. He is thus automatically a member of the Schielo hunting association.

On 11 November 2002 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority seeking the exemption of his plots from the common hunting district. On 21 January 2003 the authority rejected his request and his administrative appeal on the grounds that the legal prerequisites for a suspension of the hunt were not met and that the obligatory adherence to a hunting association could not be terminated. On 10 November 2005 the Magdeburg Administrative Court rejected the applicant ’ s request. It considered, in particular, that the obligatory membership of a hunting association did not violate his rights to freedom of conscience, to the peaceful enjoyment of his property and to equal treatment. On 13 February 2008 the Saxony-Anhalt Court of Appeal confirmed.

On 19 March 2008 the applicant lodged a constitutional complaint (no. 1BvR 1795/08).

On 30 September 2010 the Federal Constitutional Court informed the applicant about its intention to await the outcome of the proceedings before the Court in the case of Herrmann v. Germany ( no. 9300/07) before deciding on his constitutional complaint.

B. Relevant domestic law and practice

The relevant provisions of the German Federal Hunting Act are summarised in the judgment of Herrmann v. Germany [GC], no. 9300/07 , §§ 27-32, 26 June 2012 .

In a decision given in another case on 13 December 2006 (1 BvR 2084/05), the Federal Constitutional Court found that the obligatory membership of a hunting association neither violated the respective complainant ’ s property rights nor his right to equal treatment or to freedom of conscience. In its reasoning, the Federal Constitutional Court accepted the lower courts ’ view that the principles established in the Court ’ s Chassagnou judgment were not applicable to the factual and legal situation in Germany (for further details see Herrmann , cited above, §§ 16-23).

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 to the Convention taken on its own and in conjunction with Article 14 of the Convention that the obligatory adherence to a hunting association and the obligation to tolerate the exercise of the hunt on his property violated his right to the peaceful enjoyment of his propert y. He further relied on Article 11 of the Convention. According to the applicant, his constitutional complaint lacked any prospect of success.

THE LAW

The Court reiterates that, under Article 35 § 1 of the Convention, it can only deal with a matter after all domestic remedies have been exhausted. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body until they have had the opportunity to put matters right through their own legal system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see, among other authorities, Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; Demopoulos and Others v. Turkey ( dec .) [GC], nos. 46113/99 et al ., § 69, ECHR 2010 ‑ ... ; Taron v. Germany ( dec .), no. 53126/07, 29 May 2012 and Garcia Cancio v. Germany ( dec .), no. 19488/09, 29 May 2012).

Nevertheless, the only remedies which Article 35 of the Convention requires to be used are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory, but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others , cited above, § 66, and Dalia v. France , 19 February 1998, § 38, Reports 1998 ‑ I). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Van Oosterwijck v. Belgium , 6 November 1980, § 37 ; and Brusco v. Italy ( dec .), no. 69789/01 , ECHR 2001 ‑ IX ).

Turning to the circumstances of the instant case, the Court observes that the applicant lodged a constitutional complaint against the impugned court decisions in March 2008. On 30 September 2010, the Federal Constitutional Court informed the applicant about its intention to await the outcome of the proceedings pending before this Court in the case of Herrmann v. Germany ( cited above ) before deciding on the applicant ’ s constitutional complaint. The Court ’ s Grand Chamber delivered its final judgment in the Herrmann case on 26 June 2012, in which it found a violation of Article 1 of Protocol No. 1 in that the obligation to tolerate hunting on their property imposed a disproportionate burden on landowners who, like Mr Herrmann , were opposed to hunting for ethical reasons (see Herrmann , cited above, § 93). It appears that the proceedings on the applicant ’ s constitutional complaint are still pending before the Federal Constitutional Court .

The Court observes that the Federal Constitutional Court had announced its intention to await the outcome of the Court ’ s proceedings in the Herrmann case (cited above) before giving a decision on the applicant ’ s constitutional complaint. In the light of this, the fact that the Federal Constitutional Court had previously considered that the obligatory adherence to a hunting association did not violate the respective complainant ’ s property rights does not justify the assumption that the applicant ’ s constitutional complaint is devoid of any prospect of success. It follows that the applicant is not absolved from awaiting the outcome of the proceedings pending before the Federal Constitutional Court .

Therefore, the Court finds that the applicant ’ s complaint before the Court is premature.

It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips Boštjan M. Zupančič Deputy Registrar President