DISSENTING OPINION OF JUDGE COSTA

( Translation )

1. The majority held that there had been violations of several Articles of the Convention and Article 1 of Protocol No. 1. I cannot agree on any of these points.

2. Apart from the applicants ’ individual situation, which must of course be examined in concreto , there is the more general problem of the compatibility of French legislation on hunting, in particular the Law of 10 July 1964, known as the “Loi Verdeille”, with the Convention and its Protocols, since no one has con test ed the fact that the administrative and ordinary courts which found against the applicants correctly applied the law.

3. Above all, it must be pointed out that the object and result of the Loi Verdeille, which has been applied for some thirty-five years, has been to regulate hunting in France, especially in the south of France where, on account of the subdivision of rural landholdings and a very great freedom to hunt, hunting (known as “public hunting”) had become almost a free-for-all. This had a bad effect on game, crops and, in the final analysis, the whole ecosystem. Far from being confined to securing the selfish interests of hunters, the Loi Verdeille pursues a real general-interest objective, namely mitigating the effects of the subdivision of landholdings and preventing poaching, while encouraging the destruction of vermin and making possible the establishment of game reserves.

4. The main plank of this general-interest policy is the establishment of approved municipal hunters ’ associations (“ACCAs”); these must be created in certain départements and may be created in others. The départements where creation of ACCAs is compulsory are those where the prefect makes a proposal to that effect, but he also needs the approval of the council of the département concerned, which is formed of representatives of the people elected by direct universal suffrage; in départements where creation of ACCAs is voluntary they may not be set up except in municipalities where a qualified majority of landowners (representing a qualified majority of the area of the municipal territory) agree. The legislature, to my mind, cannot be faulted for this double concern for democracy, at département and municipality level, so that the fact that not quite a third of French municipalities have ACCAs does not in any way mean that the Loi Verdeille does not serve the general interest. Moreover, the areas where hunting is practised are not coterminous with the national territory as a whole, far from it. In an industrial and post-industrial country municipalities where hunting is conceivable, or where it would have any point, do not include anything like all towns or even all villages.

5. Furthermore, the main object of these ACCAs, and this is in fact the heart of the problem, is to manage hunting grounds which are sufficiently large, created by pooling the holdings of the municipality ’ s landowners (for hunting purposes alone, of course).

6. It is necessary to emphasise the need to organise hunting in the public interest both because it seems to have been somewhat underestimated in the present case and because the Court ’ s case-law legitimately attaches great importance to the public interest, particularly for the purpose of applying the Articles relied on by the applicants. In fact, the two main problems raised by this case were interference with the right of property and infringement of the negative right to freedom of association, in both instances to take account of the need to regulate hunting in the general interest.

7. With regard to the right of property, the Court, following the letter and spirit of Article 1 of Protocol No. 1, and particularly its second paragraph, has always accepted that States have the right “to enforce such laws as they deem necessary to control the use of property in accordance with the general interest”.

In my opinion, that is exactly what France did. The Loi Verdeille implies that the landowners belonging to ACCAs, even those who do not hunt themselves and even those who are opposed to hunting, agree, nolentes volentes , to permit hunters to come onto their land to hunt, not, I repeat, merely to take part in a sport, but in order to participate in a true general-interest task (even though the conduct of certain individual hunters may unfortunately make us lose sight of this).

8. Admittedly, the Court has consistently required interference with the free use of property to be reasonably proportionate and a reasonable balance to be maintained between the general interest and fundamental rights.

9. But my point is, precisely, that this balance does not seem to have been upset in the present case. Of the three attributes of the right of property only one – usus – has suffered any interference; abusus has not, nor has fructus – which is probably of no concern to the applicants, who are viscerally hostile to any form of hunting – since the Loi Verdeille makes provision for compensation to be paid to landowners for the loss of profits caused by deprivation of a source of income they enjoyed before the establishment of an ACCA. Even the interference with usus is neither general nor absolute. It is limited to the annual hunting seasons (even then hunters, engaged in what for them is a hobby, can hardly hunt every day) and hunting is prohibited within a radius of 150 metres of any dwelling (which represents an area of 7 hectares, to be compared, as we shall see, with a threshold of 20 hectares normally). There are other ways for those opposed to hunting to “protect” their land (surrounding it with a continuous, unbroken fence, lodging an objection if its area exceeds the threshold, ensuring through collective democratic action that the creation of an ACCA is not supported by a majority of the département council or a qualified majority within the municipality, etc.). I admit that these possibilities are often more formal than real, because a fence is expensive, for example, but it would be wrong not to mention them. In any event, they reflect an undeniable concern on Parliament ’ s part.

10. While a balance has to be struck between the general interest and this limited interference with the use of property, I do not find the second pan of the scales to be any heavier than the first, unless one gives way to the temptation to make a god of the right of property, which to my mind would be wrong. We should not render any town planning, regional development, public works, consolidation of landholdings and the like impossible. One can be wholly in favour of freedom and the rule of law – as the framers of the Convention were – without necessarily making individual freedom an absolute or excluding the general interest from the rule of law – which was manifestly not the intention of those who drafted the Convention. With regard to hunting, an area where each State should have a wide margin of appreciation, and where many European States have laws which restrict the right of private property in order to implement a hunting policy, it seems to me that the Court ’ s judgment goes in a very individualist direction, which will make this type of policy very difficult to conduct. In any event, I have great difficulty in finding in the present case a violation of Article 1 of Protocol No. 1.

11. The second problem concerns freedom of association, and more particularly what is called the negative right to freedom of association. Unlike the Universal Declaration (Article 20), the European Convention on Human Rights does not explicitly lay down the rule that “no one may be compelled to belong to an association” but, very legitimately, the Court inferred it, in a peremptory manner, though not without qualifications (see the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44).

12. However, if one accepts that Article 1 of Protocol No. 1 was not breached by application of the Loi Verdeille to the applicants, it is not difficult to accept that there was likewise no breach of Article 11 of the Convention.

13. Admittedly, people in the applicants ’ situation find themselves de plano members of associations of whose purpose and even existence they disapprove as a matter of principle. But these associations are of a very special type, and that puts the importance of the issue very much into perspective.

14. In the first place, these associations, classified as such by Parliament, which provided that they were to be governed by the Law of 1 July 1901, very much resemble public-law legal persons. Their object is laid down by the Loi Verdeille. They must be approved by the administrative authorities. There can be only one in any given municipality. They may not be freely set up. Their constitutions contain mandatory provisions. They are required to set up game reserves of a minimum area laid down by law. Prefects supervise them and have the power to approve their constitutions and rules of procedure, and the hunting regulations. They may also dissolve the executive committee and replace it by an appointed management committee. In short, for Convention purposes, the Court could have taken the view that these were not associations within the meaning of Article 11 but public-law institutions pursuing a general-interest objective, notwithstanding their classification in domestic law; this would have entailed holding Article 11 to be inapplicable. And there are precedents for such an approach; but that is of little consequence, the answer to this question being such a subjective matter. So the majority (not without some persuasive arguments) attached decisive importance to the classification Parliament gave to the ACCAs and accordingly accepted that Article 11 was applicable to them.

15. Secondly, however, although people like the applicants may find themselves members of ACCAs against their will, they have rights as members, particularly the right to influence the ACCAs ’ decisions, without being subject in return to the normal obligations in such a case; as automatic members they do not have to pay subscriptions and are not required to contribute to making good any deficit the association may have. If it is accepted that, in accordance with Article 11 § 2, restrictions may be placed on the right to freedom of association – even the negative right – particularly in order to protect the rights and freedoms of others, the interference effected by the Loi Verdeille with the negative right to freedom of association of landowners who do not hunt or are opposed to hunting may be considered not to be disproportionate, especially in view of the margin of appreciation which States should be left.

16. In fact, and thirdly, the true interference effected by the Loi Verdeille with rights and freedoms guaranteed by the Convention concerns the right of property. Associations are merely a legal mechanism, of secondary importance in the final analysis, for the inclusion of pieces of land in municipal or inter-municipality hunting grounds. What disturbs the applicants is not the fact of being members of ACCAs but seeing hunters and their dogs on their land. The Court was right, moreover, to consider Article 1 of Protocol No. 1 first. Considering as I do that there was no violation of Article 1 of Protocol No. 1, I cannot for my part find a violation of Article 11 of the Convention.

17. However, even if the rights guaranteed by Article 11 of the Convention and Article 1 of Protocol No. 1, taken separately, have not been infringed, it does not necessarily follow that there has been no violation of those provisions read in conjunction with Article 14. In other words, there may be a third problem, concerning discrimination. Some judges, moreover, were more sensitive to this aspect of the case (see in particular the partly concurring and partly dissenting opinion of Judge Caflisch).

18. I do not share that view either. As regards the right of property, the question is whether the distinction between small landholdings (normally less than 20 hectares, in some départements less than 40 or 60) and large landholdings is reasonably justified. I believe that it is. Parliament had no intention of penalising “small” landowners and favouring “large” landowners, which would not in any case have been a wise policy from the electoral point of view (whereas the Loi Verdeille has now survived nine successive parliaments!). Its concern was how to ensure – in the general interest – the creation of hunting grounds sufficiently large to be viable (game is no respecter of property boundaries). It was therefore necessary to fix a reasonable threshold. Like all thresholds, the one in issue has an arbitrary aspect, but what matters is that the distinction between those who are obliged to leave their land “open” (unless they enclose them) and those who may refuse access to it should be compatible with the Convention. For that to be so, it must not be based on property, for example (Article 14); but that is not the case, either according to Parliament ’ s intention or in fact, since there is no correlation whatsoever between the minimum area and the value of the land (see, for example the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98). There must also be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the Darby v. Sweden judgment of 23 October 1990, Series A no. 187). But the means employed (the threshold) is proportionate to the legitimate aim pursued, as shown by the example of numerous European States which have the same threshold, for the same purpose. As to the discrimination allegedly residing in the fact that small landowners are treated differently from one municipality to another, depending on whether there is an ACCA or not, this is inherent in the nature of a law which, out of a concern to apply democratic principles, was designed not to impose from on high but to organise from below. That precaution, which is perfectly legitimate in a sphere such as hunting, whose emotive and even passionate character is illustrated by the present case, cannot without paradox be used as a weapon against those who took it.

19. Having said that, I can be very brief on the right to freedom of association. Since I consider membership of the ACCAs a secondary issue vis-à-vis the question of the use of property, I would find it even harder to discern a violation of Articles 14 and 11 taken together than of Article 1 of Protocol No. 1 read in conjunction with Article 14.

20. I will restrict my final remarks to the observation that the Court ’ s judgment should oblige the Government and Parliament to rethink the legislation passed in 1964. After all, it is perhaps a good thing, as legislation in such a field depends so much on contemporary social attitudes and it is obvious that society has changed and that social balances in 1999 – between ecologists and hunters, for example – are no longer what they were thirty-five years ago. But one may well wonder what type of legislation will have to be enacted to comply with the Court ’ s requirements. To paraphrase the Mellacher and Others v. Austria judgment of 19 December 1989 (Series A no. 169, particularly paragraphs 45 and 48, at pages 25 and 26), which is a judgment of the plenary Court, the legislature will have to found its judgment as to what is in the general interest on a reasonable basis and employ means which are reasonably proportionate to the aims pursued. It will not be easy, but it is surely possible ...

[1] Notes by the Registry

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] . Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but copies of the Commission’s reports are obtainable from the Registry.

[4] 1. Of course, such differential treatment may be either discriminatory ( stricto sensu ) or preferential. In the latter case we speak of privileges. These privileges for one class of legal subjects, however, often (in all zero sum situations) run counter to the interests of another class of legal subjects. What is a privilege for one may be a loss or a nuisance for another.