JOINT DISSENTING OPINION OF JUDGES DAVID THÓR BJÖRGVINSSON, VUČINIĆ AND NUSSBERGER

The case Herrmann v. Germany was referred to the Grand Chamber for clarification of the Court’s case-law. The Grand Chamber was called upon to interpret the scope of its own jurisprudence and to decide whether the particular features of the German legislation justified a different approach from the one taken in the previous judgments in Chassagnou v. France and Schneider v. Luxembourg .

We regret that we are unable to agree with the decision of the majority, either in respect of the analysis of the existing case-law or in respect of the assessment of the differences between the respective national regulations.

It is necessary to take into account the fact that the Grand Chamber judgment of the Court in the case Chassagnou v. France and the Chamber judgment in Schneider v. Luxembourg are not identical. On the contrary, the Chamber, in Schneider , went far beyond the findings of the majority in Chassagnou in three very important respects.

Firstly, in Chassagnou , one of the decisive arguments in assessing the proportionality of the regulations was that they were applied only on a selective basis:

“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 .... 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.”

In Luxembourg, on the contrary, the hunting law was in principle applied nationwide, with only private property owned by the Crown being exempted.

Secondly, in Luxembourg the landowners had the possibility in principle of opposing the inclusion of their land in a hunting district, as the decision ‑ making process was based on a democratic process. This was not the case in France.

Thirdly, unlike in France, landowners in Luxembourg were entitled to compensation, albeit a very small amount.

These factors are of great importance in deciding whether a fair balance was achieved in the particular case.

We do not endorse the approach taken by the Chamber for the following reasons.

In our view the regulation of hunting is not a human rights issue per se , but rather an issue as to how to achieve an ecological balance between man and nature in a given environment. Nevertheless, whatever regulations on hunting are adopted they are liable to encroach on the rights of landowners on the one hand and the rights of hunters on the other. Therefore, the Court may be called upon – as in the case of Chassagnou v. France – to assess the hunting legislation in the light of its compatibility with the human rights guaranteed in the Convention. But the Court is not well equipped to decide on the “necessity” of the corresponding restrictions of rights, as the approach to the question of how to achieve an ecological balance is guided first and foremost by science (see the applicant’s statement in paragraph 48) and by experience. Therefore, in Chassagnou , the Court did not enter into the general debate, but based its view on the selective nature of the human rights restrictions characterising the French system, which could not be justified by any reasonable argument. In our view this very specific line of argument could not be transposed to the situation in Schneider v. Luxembourg , where the only exception to the otherwise comprehensive application of the hunting law related to the privileges of the Crown.

Furthermore, while it is acceptable to argue – as was done in Chassagnou – that the right to participate in the hunt could not be regarded as compensation for the infringement of the property rights of an individual who was opposed to hunting, the argument in Schneider that financial compensation would be irreconcilable with ethical motives was not in line with the Court’s case-law on Article 1 of Protocol No. 1. Financial compensation does matter, be it in an expropriation case or in a case concerning restriction of the use of property. The structure of the right to property is fundamentally different from that of the right to freedom of thought, conscience and religion which is protected under Article 9 of the Convention. The judgment in Schneider confused the two human rights guarantees although they are very different in their protective approach. Infringements of property rights can be “paid off”, the others not. There is no reason why restrictions on property rights should be made dependent on the property owners’ convictions. The consequence would be that the convictions of property owners would be given precedence and would enjoy dual protection, under both Article 9 (if applicable) and Article 1 of Protocol No. 1, whereas “normal convictions” would be protected only by Article 9. The case of Schneider v. Luxembourg should have been argued (and dismissed) under Article 9 and the issues of conscience should not have been raised under Article 1 of Protocol No. 1.

For all these reasons we are of the view that the Grand Chamber should not have followed the approach developed by the Chamber in Schneider , but should have favoured a narrow interpretation of the case-law on human rights issues arising out of the legislation on hunting, as originally developed in Chassagnou .

On the basis of a narrow interpretation of the judgment in Chassagnou , it is clear that the regulations laid down by the German hunting legislation differ substantially from those criticised by the Grand Chamber in Chassagnou . The German law does not regulate a leisure activity, but deals with the general management of game stocks, combines rights and duties, includes the landowners in a self-managing decision-making body and allows them to claim a share of the profits, compensation for damage and insurance payments. It is applied comprehensively throughout the country without providing for any personal exemptions. The reform of the federal system has not altered the nationwide application of the relevant regulations. We therefore believe that the arguments advanced in the Chamber judgment of the Fifth Section on 20 January 2011 are pertinent and convincing (see §§ 45-56 of the Chamber judgment).

Moreover, the situation in the specific case has to be taken into account. While it is true that human rights protection has to be practical and effective and not theoretical or illusory, it is also true that the Court should take into account whether there is a real or only a theoretical human rights problem. In the case at hand the applicant inherited the land from his mother in 1993 and has de iure been a member of a hunting association since then. Nevertheless, he complained about a human rights violation only in 2003, that is to say ten years later, allegedly – as his lawyer stated at the hearing – because he had been unaware of the fact that he was a member of a hunting association. In real human rights cases applicants know (and feel) that their rights are being violated. Furthermore, the applicant did not have any knowledge about the use of his land, being unaware that animals were being raised there for slaughter. There are no indications of any damage to his property or any other visible or tangible problems caused by the application of the legislation in force. Likewise, he never tried to influence the other members of the hunting association, although he claimed that the latter had some discretion, for instance to reduce the range of species to be hunted (see paragraph 97 of the judgment). Finally, he did not allege that he had ever witnessed a hunt on his property.

All in all, the Court has 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.

[1] “Mankind’s true moral test, its fundamental test (which lies deeply buried from view), consists in its attitude towards those who are at its mercy: animals.” In Milan Kundera, The Unbearable Lightness of Being , 1984.

[2] See Akkum and Others v. Turkey , no. 21894/93, § 276, ECHR 2005-II, and DoÄŸan and Others v. Turkey , nos. 8803-8811/02, 8813/02 and 8815-8819/02, § 54, ECHR 2004 ‑ VI.

[3] See López Ostra v. Spain, 9 December 1994, § 51, Series A no. 303-C, and Guerra and Others v. Italy, 19 February 1998, § 60 , Reports of Judgments and Decisions 1998 ‑ I.

[4] See Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, § 59, 26 July 2011. The Court’s willingness to assess the impact of urban development policy on protected species had been made clear previously in Kyrtatos v. Greece, no. 41666/98, § 53, ECHR 2003-VI.

[5] On the preventive slaughter of animals see Chagnon and Fournier v. France, nos. 44174/06 and 44190/06, § 57, 15 July 2010.

[6] On the supervision of slaughterhouses see Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 77, ECHR 2000-VII.

[7] See Verein gegen Tierfabriken Schweiz (Vgt) v. Switzerland (no. 2) [GC], no. 32772/02, § 92, ECHR 2009, and Vgt Verein gegen Tierfabriken v. Switzerland , no. 24699/94, §§ 70, 71 and 75, ECHR 2001-VI (rearing of animals); 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, § 28, ECHR 1999-VIII (hunting saboteurs); Steel and Others v. the United Kingdom , 23 September 1998, § 92, Reports 1998-VII (hunting saboteurs); Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 63 and 73, ECHR 1999-III (brutal killing of animals); and Barthold v. Germany , 25 March 1985, § 58, Series A no. 90 (lack of availability of veterinary surgeons during the night).

[8] See Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III, and Friend and Countryside Alliance v. the United Kingdom (dec.), no. 16072/06 and no. 27809/08, §§ 43-44, 24 November 2009.

[9] See Cha’are Shalom ve Tsedek , cited above, § 82.

[10] See the 1972 Stockholm Declaration approved at the UN Conference on the Human Environment, the preamble to the World Charter for Nature approved by the UN General Assembly (UNGA RES 37/7, 1982), paragraph 11 of the preamble and Article 17 of the Universal Declaration on Bioethics and Human Rights adopted by the General Conference of UNESCO on 19 October 2005, and at treaty level, the 1971 Ramsar Convention on Wetlands of International Importance, the 1973 Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora, the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals, the 1980 Canberra Convention for the Conservation of Antarctic Marine Living Resources and the 1992 Rio Convention on Biological Diversity.

[11] See the African Convention on the Conservation of Nature and Natural Resources, adopted in 1968 in Algiers, and its 1982 Protocol.

[12] See the 1992 Managua Convention for the Conservation of the Biodiversity and the Protection of Wilderness Areas in Central America and the 1993 Guatemala Regional Convention on the management and conservation of natural forest ecosystems and forest plantation development.

[13] See the 1985 Kuala Lumpur Agreement on the Conservation of Nature and Natural Resources, which was anticipated by the 1976 Convention on the Conservation of Nature in the South Pacific.

[14] Within the WTO the most significant case was the shrimp-turtle case, India et al. v. U.S. The WTO Panel ruling of 6 November 1998, modified by the WTO Appellate Body ruling of 21 November 2001, concerning the US ban on the import of certain shrimp and shrimp products from India and other countries, recognised under WTO rules the right to protect animal or plant life and health and to take measures to conserve exhaustible resources.

[15] See the Terrestrial Animal Health Code, which includes standards on, inter alia , transport of animals by land, sea or air, slaughter of animals for human consumption, killing of animals for disease control purposes, control of stray dog populations and use of animals in research and education.

[16] Soft law has also been an important political instrument for the implementation of a European standard of animal welfare. For that purpose the Parliamentary Assembly approved Recommendation 287 (1961) on the international transit of animals, Recommendation 621 (1971) on the problems arising out of the use of live animals for experimental or industrial purposes, Recommendation 620 (1971) on problems of animal welfare in industrial stock-breeding, Recommendation 641 (1971) on animal welfare in industrial stock-breeding, Order 326 (1972) on an information campaign on animal welfare, Recommendation 709 (1973) on slaughter methods for meat animals, Recommendation 825 (1978) on protection of wildlife and on seal hunting, Recommendation 860 (1979) on dangers of over-population of domestic animals for the health and hygiene of man and on humane methods of limiting such dangers, Order 419 (1983) on protection of animals in experimental procedures, Recommendation 1084 (1988) on the situation of zoos in Europe, Recommendation 1143 (1991) on relations between animal husbandry and the quality of the environment, Resolution 1012 (1993) on marine mammals, Recommendation 1289 (1996) on animal welfare and livestock transport in Europe, Opinion 245 (2003) on the draft revised Convention for the protection of animals during international transport, Recommendation 1689 (2004) on hunting and Europe’s environmental balance, and Recommendation 1776 (2006) on seal hunting.

[17] In its judgment in case C-416/07, the Court of Justice of the European Union decided that Greece had failed to fulfil its obligations under Council Directive 91/628/EEC and Council Directive 93/119/EC to ensure, inter alia , that the rules on the stunning of animals at the time of slaughter were complied with and that inspections and controls in slaughterhouses were carried out in an appropriate manner.

[18] Specific legislation has been enacted on laying hens (Council Directive 1999/74/EC), chickens kept for meat production (Council Directive 2007/43/EC), calves (Council Directive 2008/119/EC), pigs (Council Directive 2008/120/EC), wild animals kept in zoos (Council Directive 1999/22/EC) and on special animal welfare standards for cattle, pig and poultry production in organic farming (Council Regulation (EC) 834/2007 and Commission Regulation (EC) 889/2008). Two recent pieces of legislation, Directive 2007/43/EC and Regulation (EC) 1099/2009 on the protection of animals at the time of killing, introduced outcome-based animal welfare indicators. In addition, the Commission adopted the Community Action Plan on the Protection and Welfare of Animals 2006-2010 (COM(2006)13final), which was followed by the European Union Strategy for the Protection and Welfare of Animals 2012-2015 (COM(2012)6final/2).

[19] The expression is drawn from Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 85, ECHR 2002-VI.

[20] For the intrinsic value of nature see the preamble to the 1979 Berne Convention on the Conservation of European Wildlife, cited above, the preamble to the World Charter for Nature, cited above, Article 3 of the 1991 Protocol to the Antarctic Treaty on Environmental Protection and the preamble to the 1992 Rio Convention on Biological Diversity. The intrinsic value of all species has been expressed in the German-speaking countries by the felicitous expressions “fellow creatures” ( Mitgeschöpfe , introduced in 1986 in section 1 of the German Tierschutzsgesetz ) or “dignity of creatures” ( Würde der Kreatur , enshrined in 1992 in Article 120 of the Swiss Federal Constitution), both inspired by the teachings of Fritz Blanke (“ Wir sind, ob Mensch oder Nichtmensch, Glieder einer grossen Familie. Diese Mitgeschöpflichkeit (als Gegenstück zur Mitmenschlichkeit) verpflichtet” , in Unsere Verantwortlichkeit gegenüber die Schöpfung, in Festschrift Brunner, Zurich, 1959, p. 195). The same understanding is reflected in the expression “sensitive being” ( être sensible ) of article L. 214-1 of the French Rural Code, which encompasses “the mental health” ( santé psychique ) of the animal, as interpreted by the judgment of the Paris Court of Appeal of 14 November 2011.

[21] Article 14 (2) of the Universal Declaration on Animal Rights adopted by the International League of Animal Rights and Affiliated National Leagues in the course of an International Meeting on Animal Rights which took place in London in September 1977, and the preamble to and Article 1 of the Universal Declaration of Animal Rights, proclaimed on 15 October 1978 at UNESCO headquarters and revised by the International League of Animal Rights in 1989. While these texts affirm the existence of “animal rights” within the context of biological equilibrium, they also clearly state that the acknowledgment of these rights does not overshadow the diversity of species and of individuals.

[22] See Balluch v. Austria , no. 26180/08, application lodged on 4 May 2008 by an animal protection activist on behalf of a chimpanzee, and rejected by a committee of the First Chamber for incompatibility ratione materiae. The same happened in Stibbe v. Austria , no. 26188/08, application lodged on 6 May 2008.

[23] That same sense of mankind’s responsibility for animal life and welfare has been stressed by the UNGA in the preamble to the World Charter for Nature, by UNESCO in paragraph 11 of the preamble to and Article 17 of the Universal Declaration on Bioethics and Human Rights and by the Council of Europe in Recommendation (91)7 on the slaughter of animals, the Convention for the Protection of Vertebrate Animals used for Experimental and Other Scientific Purposes and the Convention for the Protection of Pet Animals.

[24] On the restriction of the right to property on environmental protection grounds, see Fredin v. Sweden (no. 1) , 18 February 1991, § 48, Series A no. 192; Pine Valley Developments Ltd and Others v. Ireland , 29 November 1991, § 57, Series A no. 222; Saliba v. Malta , no. 4251/02, § 44, 8 November 2005; and Hamer v. Belgium , no. 21861/03, § 79, ECHR 2007-V.

[25] For instance, freedom of expression does not cover any form of art which tortures animals, or the commercial creation, sale or possession of certain depictions of animal cruelty such as “crush videos”, which feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish (see the opinion of Justice Alito in United States v. Stevens, 559 U.S. (2010)).

[26] The same argument was made by the Federal Constitutional Court in its judgment of 13 December 2006, paragraph 26.

[27] In page 35 of his application to the Federal Constitutional Court, the applicant considers himself as a tierliebender Mensch (animal-loving person).

[28] In modern times, the philosophical question of the nature of animals started with a simple question, which was nonetheless full of meaning, posed by Michel de Montaigne in Apology for Raymond Sebond , 1580: “When I play with my cat, who knows whether I do not make her more sport than she makes me? We mutually divert one another with our play”.

[29] Rousseau, Discourse on the Origin of Inequality , 1754: “… we put an end to the time ‑ honoured disputes concerning the participation of animals in natural law: for it is clear that, being destitute of intelligence and liberty, they cannot recognize that law; as they partake, however, in some measure of our nature, in consequence of the sensibility with which they are endowed, they ought to partake of natural right; so that mankind is subjected to a kind of obligation even toward the brutes.”

[30] Voltaire, Philosophical Dictionary , 1764: “What a pitiful, what a sorry thing to have said that animals are machines bereft of understanding and feeling, which perform their operations always in the same way, which learn nothing, perfect nothing, etc.!”

[31] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation , 1789: “The day may come when the rest of the animal creation may acquire those rights which never could have been withheld from them but by the hand of tyranny. … What else is it that should trace the insuperable line? Is it the faculty of reason or perhaps the faculty of discourse? But a full ‑ grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day or a week or even a month, old. But suppose the case were otherwise, what would it avail? The question is not, Can they reason?, nor Can they talk? but, Can they suffer?”

[32] Schopenhauer, On the Basis of Morality , 1839: “The moral incentive advanced by me as the genuine, is further confirmed by the fact that the animals are also taken under its protection. In other European systems of morality they are badly provided for, which is most inexcusable. They are said to have no rights, and there is the erroneous idea that our behaviour to them is without moral significance, or, as it is said in the language of that morality, there are no duties to animals…”

[33] Bertrand Russell, If Animals Could Talk , 1932: “There is no impersonal reason for regarding the interests of human beings as more important than those of animals. We can destroy animals more easily than they can destroy us; that is the only solid basis of our claim to superiority.”

[34] The Schächt-Entscheidung (BVerfGE 99, 1, 15 January 2002) 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.

[35] The German constitutional provision includes, according to the explanatory memorandum to the Constitutional Reform Act of 26 July 2002, a threefold guarantee: “the protection of animals against improper treatment of the species, avoidable suffering and destruction of their living space” ( den Schutz der Tiere von nicht artgemässer Haltung, vermeidbaren Leiden sowie der Zerstörung ihrer Lebensräume , BT-Drucks. 14/8860, p. 3). Prior to the constitutional reform, the German Bundestag had already declared, on 30 June 1994, that animals also formed part of the “natural foundations of life” and that the protection of species and their living space therefore fell within the constitutional ambit of ecological protection. The novelty of the constitutional reform lies in the additional protection afforded to “individual animals” ( einzelne Tiere ), based on their “capacity for suffering” ( Leidensfähigkeit ).

[36] On the protection of animals as a “principle of assessment and interpretation” ( Abwägungs and Auslegungsgrundsatz ) when public decisions are taken and when conflicts with constitutional rights arise, see, among other authorities, Hirst/Maisack/Moritz, Tierschutzgesetz, Kommentar , München, 2007, pp. 59-71; Kloepfer, Umweltrecht , München, 2004, pp. 62, 945-946, 963; Scholz, annotations 7, 49, 70, 76, 79 and 84 to Article 20a, in Maunz/Dürig, Grundgesetz Kommentar , III, München; Caspar and Schröter, Das Staatsziel Tierschutz in Art.20a GG , Bonn, 2003, p. 47-49, 94; and Caspar and Geissen, Das neue Staatsziel “Tierschutz” in Art. 20a GG , in NVwZ, 2002, p. 916).

[37] Federal Constitutional Court judgment of 13 December 2006, paragraph 16, and Federal Administrative Court judgment of 14 April 2005, paragraph 23 .

[38] BVerfGE 12, 45 - Kriegsdienstverweigerung I, 20 December 1960 .

[39] See Chassagnou and Others , cited above, § 114. This statement of principle was reiterated in Schneider v. Luxembourg , no. 2113/04, § 82, 10 July 2007.

[40] See Chassagnou and Others , cited above, § 113.

[41] Contrary to the reasoning of the Federal Constitutional Court judgment of 13 December 2006, paragraph 25, and Federal Administrative Court judgment of 14 April 2005, paragraph 18.

[42] The conflict of conscience between obeying national law and upholding a higher ethical principle acknowledged by the international community has been articulated in Polednová v. the Czech Republic ((dec.), no. 2615/10, 21 June 2011), which reaffirmed the findings of K.-H.W. v. Germany ([GC], no. 37201/97, ECHR 2001-II). In these particular cases, the Court criticised the applicants precisely for their inability to uphold a higher ethical standard contrary to the one affirmed by national law.

[43] See the Federal Administrative Court judgment of 14 April 2005, paragraph 18 .

[44] As the Council of Europe requires in its Convention for the Protection of Animals for Slaughter and the aforementioned Recommendation 91(7) and its Code of Conduct, and in Recommendation 1776 (2006), which considers “all … methods which do not guarantee the instantaneous death without suffering of animals” as “cruel hunting”.

[45] See Chassagnou and Others , cited above, § 85. This statement of principle was reiterated in Schneider , cited above, § 51.

[46] The emblematic case is Cossey v. the United Kingdom (27 September 1990, § 32, Series A no. 184), where the Court considered that the case was distinguishable on its facts from the Rees case but was not persuaded that this difference was “material”.

[47] See, among other cases, Chapman v. the United Kingdom [GC], no. 27238/95, § 70, ECHR 2001-I; Bayatyan v. Armenia [GC], no. 23459/03, § 103, ECHR 2011; and Konstantin Markin v. Russia [GC], no. 30078/06, § 140, ECHR 2012. The geographical boundaries of this criterion are flexible. In Christine Goodwin , cited above, § 85, the Court attached “less importance to the lack of evidence of a common European approach to the resolution of the legal and practical problems posed, than to the clear and uncontested evidence of a continuing international trend”, quoting the legal situation in non-European countries.

[48] See Stafford v. the United Kingdom [GC], no. 46295/99, §§ 69 and 79, ECHR 2002-IV.

[49] See Demir and Baykara v. Turkey [GC], no. 34503/97, § 85, ECHR 2008; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 105, 17 September 2009; and Bayatyan , cited above, §§ 104-107.

[50] See Christine Goodwin , cited above, §§ 83 and 92, and Vo v. France [GC], no. 53924/00, §§ 82 and 84, ECHR 2004 ‑ VIII.

[51] The very first judgment where the new Court stated clearly its animus mutandi with regard to uncertain case-law was Pellegrin v. France ([GC], no. 28541/95, §§ 60-63, ECHR 1999 ‑ VIII), whose terms were repeated, for instance, in Perez v. France [GC], no. 47287/99, §§ 54-56, ECHR 2004-I.

[52] See, for example, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, §§ 56 and 57, ECHR 2007-II. As the Court stated in its seminal case Ireland v. the United Kingdom (18 January 1978, § 154, Series A no. 25): “The Court’s judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties”. Consequently, the Court rejected a strict originalist interpretation of the Convention based on the original intentions of its framers (see Loizidou v. Turkey (preliminary objections), 23 March 1995, § 71, Series A no. 310, and Mamatkulov and Abdurasulovic v. Turkey , nos. 46827/99 and 46951/99, § 94, 6 February 2003).

[53] See Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005 ‑ I, based on the thesis of an evolving interpretation of the Convention first put forward in Tyrer v. the United Kingdom , 25 April 1978, § 31, Series A no. 26.

[54] See the joint concurring opinion in Yoh-Ekale Mwanje v. Belgium , no. 10486/10, 20 December 2011.

[55] See the Chamber judgment in Mamatkulov and Abdurasulovic , cited above, which found a violation of Article 34 for non-compliance with Rule 39 and thus departed from the precedent established in Cruz Varas and Others v. Sweden , 20 March 1991, § 102, Series A no. 201.

[56] See the Grand Chamber judgment in Mamatkulov and Askarov , cited above, which upheld the Chamber judgment and definitely overturned the previous Cruz Varas case ‑ law.

[57] See the Federal Constitutional Court judgment of 13 December 2006, paragraph 22, and the Federal Administrative Court judgment of 14 April 2005, paragraph 20.

[58] The same happened in Luxembourg, where a mere 3.25 euros per year was afforded to each landowner (see Schneider , cited above, § 49).

[59] As the Federal Constitutional Court did in its judgment of 13 December 2006, paragraph 22.

[60] See Chassagnou and Others , cited above, § 92.