PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE ZUPANČIČ

I.

In my opinion the case has been erroneously circumscribed from the beginning and the central question, which ought to have been the main focus of the inquiry, has thus been diffused into a series of separate issues. Were the issue here defined as one of discrimination lato sensu, the question would then have been: “Has the Loi Verdeille discriminated against landowners who oppose hunting by giving certain, allegedly excessive, rights to hunters?”

In order to see the issue in a proper perspective it has to be understood, of course, that the purpose of practically every legal norm – whether it is command, proscription or authorisation – is to distinguish between different categories (classes) of legal subjects. Even criminal laws “discriminate” in this sense between those who continue to be presumed innocent and those who have been found guilty. Every legal system operates through conceptual distinctions entailing legal consequences – in constitutional, civil, criminal, administrative, international, etc. branches of the law. The meaning of the Latin verb “ discriminare ” is simply to distinguish, to perceive relevant differences, etc.

Even in ordinary language, however, the word “discrimination” acquires its pejorative connotation unless there is reasonable justification for the differential treatment of an individual (or a whole class of individuals) [4] . Where such differential treatment, due to prejudice or simply the lack of rational consideration, is coupled with the use of power, we speak of arbitrariness, capriciousness, inconstancy, irregularity, unpredictability ... We intuitively understand that these attributes are wholly irreconcilable with the ideal of the rule of law, état de droit, Rechtsstaat , etc.

The ideal of the rule of law, on the other hand, presupposes the generality of the laws, i.e., their plain and even applicability ( in abstracto ) and their uniform application ( in concreto ) . The reason why laws must be promulgated in advance and why they must be abstract, as opposed to, for example, leges in privos datae, lies therein.

The high level of conceptual differentiation, i.e., the constant creation of new normative distinctions is what distinguishes a developed legal system from a primitive one. Thus the developed legal systems are facing one basic

dilemma: “How to maintain equality before the law, equal protection of the laws, etc. – while incessantly producing new legal distinctions (“ discriminations ”), new legal categories, new classes of legal subjects to be treated differently ...?” Thus the central contradiction of everything legal is the constant oscillation between the imperative of equality on the one hand and the constant need for further discrimination on the other hand.

Since this dialectic is at the bottom of everything legal – the creation of new laws, the uniformity of case-law, the stare decisis principle, the non-arbitrary use of executive power – the iron repertory of legal concepts can in the final analysis no longer furnish us with definite and reliable criteria for judgment. Legal systems with their different modes of interpretation of legal norms supply the ready-made criteria for judgments according to law. But when the question is being asked, for example before a constitutional court, as to whether a particular law as such may or may not be discriminatory, such criteria are of little use.

Modern constitutional courts and supreme courts (with the power of judicial review) faced with questions of discrimination in one case after another, must resort to the meta-juridical criterion of reasonableness when determining whether a particular law, a particular judicial or administrative decision is arbitrary and capricious, unjustifiably discriminatory, etc.

Needless to say, this criterion of reasonableness may degenerate into a non-legal policy consideration. Excessive consideration of the validity of the legislature ’ s intentions will tend to make the court applying it transgress the limits of judicial restraint. Yet the issue is not judicial restraint. The issue is preservation of the autonomy of legal reasoning.

At the other extreme we have the timid and defensive regression to positivistic-formalistic legal formulae characteristic of the new constitutional courts which have not yet established themselves vis-à-vis the legislative and the executive branches of power. But as we pointed out above, before the courts of last appeal there can be no simple praecepta ; these courts must go beyond the mere interpretation of particular laws with which the ordinary courts are charged.

It would seem that we are caught somewhere between these two extremes when interpreting the Convention and its Article 14.

II.

Fortunately, however, it is much easier to say what is not reasonable than what is reasonable. The particular case before us, if it were defined in terms of discrimination, would raise the single issue of the justification for the differential treatment of landowners opposed to hunting vis-à-vis hunters. The case has been sufficiently politicised by the applicants themselves to bring this question of principle into the focus of this controversy. Landowners opposed to hunting in fact allege that the “hunters ’ lobby” in France is a politically privileged interest group. The applicants further maintain, almost ideologically, that they are, as a matter of principle, “viscerally” opposed to the killing of animals as well as to their own pro forma membership of the local ACCAs.

What somewhat obscures the obvious question here is the fact that the landowners concerned derive their standing ( legitimatio activa ) from their property right, i.e., their ownership of the land on which hunting takes place. Imagine, however, that they owned no land but were opposed on principle to the killing of game, because they were advocates of animals ’ rights, say. They would maintain that the law permitting hunting at all, because of suspect legislative motivation, discriminated against them; they would have to maintain that such a law gave the right to kill animals to hunters, whereas the legislature had unjustifiably ignored their own principled opposition to such a “barbaric practice”.

To put this in the context outlined above we would have to say that the legislature here created the select class of “hunters” together with their allegedly unreasonable privileges. On account of these unreasonable privileges of the hunters, those opposed to hunting would maintain they were placed at a disadvantage, i.e. discriminated against. They would further maintain that there was really no rational basis for the hunters ’ privileges since hunting served no identifiable social purpose but was simply an anachronistic continuation of aristocratic prerogatives, the pursuit of pleasure, etc. They would maintain that the granting of hunting rights – irrespective of the property link – was arbitrary because there was no reasonable justification for it whatsoever.

In the case before us one would have to agree, a fortiori , that legal privileges granted with no rational basis cause arbitrarily imposed nuisances ( immissiones in Roman law) to those who are, by the force of law, compelled to tolerate the legal exercise of these privileges on their own land. To say that they have the possibility of escaping this predicament by fencing their 20 hectares of property would seem to add insult to injury. Clearly, therefore, we are dealing here with the issue of discrimination per se .

III.

Yet it is not obvious to me that hunting as such has no identifiable social purpose or utility. If it were so there would be countries in which hunting would be categorically outlawed. I know of no such country. I could agree, arguendo , that the class of those opposed to hunting may feel discriminated against, especially if they believe that hunting is an abominable practice which involves killing innocent animals.

But it is also clear that the issue then comes down to the question of reasonableness, vel non , of hunting as a social practice. Since it is further clear that it is impossible to say, except in a purely ideological perspective, that hunting is un reasonable, the Court is then in a position where it must balance the reasonableness of hunting on the one hand and the necessary immissiones to be suffered by those opposed to hunting on their land on the other hand. In equal-protection terms the test is then whether the alleged discrimination is rationally related to a legitimate legislative interest .

In this respect the Loi Verdeille is admittedly clumsy, i.e., it could be said that at least in some aspects it is not rationally related to the legitimate societal interest. Yet there are positive aspects to the Loi Verdeille, as persuasively explained in the dissenting opinion of Judge Costa. One must keep in mind that most of the problems derive from the Loi Verdeille ’ s attempt to strike a fair compromise between the right to hunt and the rights of private landowners. If the two aspects were separated, as they are in many countries where the landowners have neither automatic membership of the hunting organisation nor the right or possibility to prevent hunting on their land, the Loi Verdeille ’ s somewhat awkward solutions would not even be necessary. It is thus somewhat inappropriate to penalise the French legislature because it tried to strike a fair balance between hunters ’ rights and the rights of landowners – and thereby laid itself open to the reproach of discrimination. It is for this reason, too, that I cannot bring myself to maintain that the Loi Verdeille fails the rational relationship test .

It should also be understood, however, that the mild rational relationship discrimination test applies to social and economic issues, hunting versus environmental protection being one of them. If this was a suspect classification in terms of race, alienage or national origin, etc., the strict scrutiny test would apply, i.e. the Convention would be deemed to be violated unless there were a compelling State interest and the law in question would be suitably tailored to serve it. If gender or illegitimacy, etc., were the issue the heightened scrutiny test would be applicable, i.e. the law would be in violation unless it was substantially related to a sufficiently important State interest.

Admittedly, these are test s of equal protection typically applicable in constitutional litigation before constitutional courts. But the only relevant difference here is that we decide in concreto and inter partes , the abstract erga omnes impact of our decision being implicit in deciding the individual claim. Substantially the problem of discrimination is the same.

Apart from that, I concede to the majority that the intended privilege of automatic membership of an ACCA may for certain landowners be a privilegium odiosum , i.e. in violation of their freedom of association – for purely subjective, moral and even ideological reasons.

partly concurring and partly dissenting opinion of Judge TRAJA

I agree with Judge Costa, for the reasons given in his opinion, that there has been no violation of Article 1 of Protocol No. 1, whether taken separately or in conjunction with Article 14 of the Convention, but also agree with the opinion of Judge Caflisch, in so far as he finds a violation of Article 11 of the Convention taken in conjunction with Article 14.