Press ReleaseAttorney-at-Law, Dr. Christian Sailer December 2006
A Hunter in Judge’s Robes Makes Short Shrift of Hunting Opponents
In the first case against enforced hunting on all property in Germany, the administrative court in Würzburg ruled that owners of hunting grounds who reject hunting should not be able to make a plea on the basis of conscience when ownership of their property is in the form of a limited company and not as natural persons.
In doing this, the Würzburg administrative court chose the simplest escape route possible, avoiding a serious examination of the legal concerns of the plaintiffs: The legal entities, who are the owners of both hunting grounds, should not plead their basic right from Article 4 of the German Constitution, because freedom of religion and freedom of conscience provided in the constitution are guaranteed only to natural persons. Furthermore, the partners and managers of both legal entitles should likewise not be allowed to plead a decision of conscience, because they are not entitled to make an application.
This result is totally indefensible, alone through the fact that the limited company of the plaintiffs is not a legal entity, but an association of persons and the limited partners of this association are three of the plaintiffs. And even if a legal entity were to be involved, one must allow it the basic right guaranteed in Article 4, because it was founded for the express purpose of giving legal form to the farmers’ basic religious attitude. Adjudication cannot be dependent on the choice of legal form. There are numerous decisions in which the basic right in Article 4 of the German Constitution was allowed to legal entities from the ecclesiastical field, because with it, they were able to practice the faith of their members, for instance, in charitable activities.
In the present case, several farmers had joined together to operate an agricultural enterprise and put into practice certain ethical principles within the framework of their common ideological-religious goals, which, above all, include the rejection of killing animals. Even if this association were to take place in the form of a legal entity, this entity could plead observance of these ethical principles and the resulting behavior patterns of its partners, for these are “applicable” to legal entities “according to their nature.” (Art. 19, para. 3 GC)
On another note, the evasive action of the court is not surprising. At the beginning of the proceedings, the plaintiffs’ lawyer informed the presiding judge that the present case involved the ethical evaluation of hunting and therefore, it was important for the plaintiffs to know whether any of the judges is a hunter. This information was flatly refused, whereupon the plaintiffs’ lawyer challenged the presiding judge. This motion of challenge was thrown out as “an abuse of law,” so that the proceedings could be continued and no decision of purport would have to be made on the plaintiff’s question and the court’s refusal to answer.
Following this, the lawyer informed the court of his knowledge that the presiding judge is a hunter and therefore, concern on the grounds of bias was justified. The court did not give a rule of purport on this motion either, but likewise dismissed it as “legally abusive” and thus, impermissible.
Under these circumstances, the court case could no longer be considered a serious event, whereupon the lawyer and his clients explained to the court that they would no longer participate in it. Clearly, the court had already decided against them.
And so it was, when after two hours the court disallowed the complaint. The judges apparently noticed how problematical this was, because they made allowances for an appeal, given the fundamental significance of the case. The presiding judge remarked that, in the last instance, this case would be first decided at the European Court of Human Rights in Straßburg.
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