Tuesday, July 17, 2012

What if you didn't even notice?

What if the government violated your rights, and nobody noticed? What if the government violated your rights, and you didn't even notice? If a tree falls in a forest, and there's nobody there to hear it, did it really make a sound?

The reason for these ruminations is the recent European Court for Human Rights judgement in Herrmann v. Germany. It took nothing less than the Grand Chamber of that court to defend the rights of Mr. Herrmann, rights that he never realised were being violated until 10 years after the alleged violation began.

Now this is not some case of hidden violation of rights, as where someone pollutes your land in a manner that is not easily detectable. No, here the violation is not easily detectable because it's really, really small.

As such, the case of Herrmann v. Germany is a good opportunity to consider the principle of de minimis non curat lex. In the specific context of European law - here: ECHR law - that translates into an issue of subsidiarity. The pan-European authorities should not interfere with the legal orders of the sovereign states of Europe in cases where there is only a de minimis benefit to them doing so.
But first the facts. From the case:
11.  Under the German Federal Hunting Act (Bundesjagdgesetz), owners of hunting grounds with a surface area of less than 75 hectares arede jure members of a hunting association (Jagdgenossenschaft), while owners of larger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate of less than 75 hectares each, which he inherited in 1993 from his late mother. He is thus a de jure member of a hunting association, in this case the hunting association of the municipality of Langsur. 
12.  On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority seeking to terminate his membership of the hunting association. The authority rejected his request on the grounds that his membership was prescribed by law and that there was no provision for the termination of membership. 
24.  Having been invited by the President of the Grand Chamber to provide the Court with additional information regarding the actual use of the applicant’s land, the Government submitted a declaration by the farmer who had taken out a lease on the agricultural land to which the applicant’s plots belonged. The farmer submitted that she regularly used the land to raise cattle destined for slaughter. This was confirmed in awritten statement by the mayor of the municipality of Langsur. The applicant submitted that he had visited the plots several times over the previous years without ever seeing any cattle. He had never given permission for his land to be used in that way and would take legal action against any possible abuse.
Now there is plenty to be said about the extent to which this constitutes an infringement of the applicant's right to peaceful enjoyment of his property, his right to freedom of thought and conscience or his freedom of association. Most of it is being said on the UK Human Rights Blog here and at the Strasbourg Observers Blog here. Personally, I'm OK with considering this an infringement of the right to property, absent some showing of a compelling government interest in keeping the stock of certain animals within reasonable bounds, but I'm not very attached to that conclusion. (The Chamber stuck this case under the margin of appreciation, while the Grand Chamber found an infringement of art. 1 P 1. Both ducked the issue of art. 9 ECHR.) Like I said, the reason why this case is interesting is because it is so uninteresting.

This point is only raised towards the end of the dissent of Judges Björgvinsson, Vučinić and Nussberger:
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.
And yet to me, it appears to be the key issue of the case. I agree with the dissenters, to the point that I think the Court should have declared the case inadmissible under art. 35(3)(b) ECHR: "The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that (...) the applicant has not suffered a significant disadvantage". Once you get past this point, the rest of the case is quite straightforward, depending only on the size of the margin of appreciation that one wishes to accord to the High Contracting Parties, as so often.

This is not just a matter of high principle, where pan-European uniform standards should be avoided whenever possible, but also a matter of pragmatism. If the Court already complains so much about its backlog of cases, the last thing it should be doing is wasting time on some whining German with an axe to grind. And even after the - in retrospect erroneous - Chamber judgement, there was no reason for the Grand Chamber to take up the case. The mere fact that a Chamber judgement is incorrect cannot be enough to warrant Grand Chamber intervention. This case was a close call, hunting is hardly a grave human rights issue, and the Chamber erred on the side of giving the national legislatures (too) much freedom, so the Grand Chamber could have easily let the initial judgement stand. Which makes one wonder: Why didn't they? Perhaps that British blogger I read the other day - I can't remember which one and I can't be bothered to look it up - was right. Maybe there are too many law professors on the Court, and not enough actual judges.

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