Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12104/86 Application No. 13278/87

by Oskar INGLIN and 8 others by Adolf BESMER and 36 others

against Switzerland against Switzerland

The European Commission of Human Rights sitting in private

on 12 December 1988, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H. C. KRÜGER, Secretary to the Commission.

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 30 December

1985 and 24 January 1987 by Oskar INGLIN and eight others and

Adolf BESMER and 36 others against Switzerland and registered on

7 April 1986 and 7 October 1987 under file Nos. 12104/86 and 13278/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

Application No. 12104/86 has been introduced by eight

applicants all of whom are Swiss citizens, as well as one applicant

foundation. Their particulars are set out in Appendix No. 1

attached hereto. Before the Commission they are represented by

Mr. M. Pestalozzi, a lawyer practising at Zürich in Switzerland.

Application No. 13278/87 has been introduced by 36 applicants,

all of whom are Swiss citizens, and one applicant foundation. Their

particulars are set out in Appendix No. 2 attached hereto. Before

the Commission they are represented by Mr. L.A. Minelli, a lawyer

practising at Forch in Switzerland.

The applicant foundation of Applications Nos. 12104/86 and

13278/87 claims that it is filing the applications in its capacity as

a protector of the environment. The remaining applicants are filing

their applications either as land owners or land tenants in the areas

concerned, or as heirs to such persons, or as neighbours complaining

about noise nuisance.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicants, may be

summarised as follows:

I

Since 1973 the Swiss Confederation, namely the Federal

Military Department, has been planning to construct a military

training site (Waffenplatz) on an alpine moor (Hochmoor) in the area

of the Rothenthurm commune in Switzerland. The training site was to

consist of barracks, an infantery training area and a reconnaissance

area. Not all the required real property could be bought. In order

to obtain the remaining land, the Swiss authorities instituted

expropriation proceedings in 1982. A number of persons formally

raised objections against the expropriations which were eventually

brought before the Federal Military Department. On 12 April 1985 the

latter confirmed its jurisdiction to decide on the objections.

II

The applicants of Application No. 12104/86 thereupon filed an

administrative law appeal (Verwaltungsgerichtsbeschwerde) in which

they complained that the Federal Military Department had in fact been

a judge in its own case. They also complained that their case was not

heard by an independent and impartial tribunal established by law

within the meaning of Article 6 para. 1 of the Convention.

The administrative law appeal was dismissed by the Federal

Court on 3 July 1985. The Court, after confirming the jurisdiction of

the Federal Military Department to deal with the objections at issue,

found that its own powers complied with the conditions of Article 6

para. 1 of the Convention. In particular, it was competent to examine

the contested decision not only in respect of legal errors and of an

abuse of discretion but also, and without limitation, the facts of the

case. According to the Federal Court it was irrelevant that it could

not control the appropriateness of the contested decision, since

Article 6 para. 1 of the Convention did not require that the judge

should be empowered himself to undertake tasks of the administration

by substituting his own discretion for the discretion of the

administration.

III

Thereafter, the Federal Military Department dismissed the

objections filed against the expropriations in various decisions

between 3 and 24 June 1985. Against these decisions the applicants of

Application No. 13278/87 as well as other persons filed further

administrative law appeals in which they complained, inter alia, that

in the proceedings at issue they had not had the benefit of an

independent and impartial tribunal within the meaning of Article 6

para. 1 of the Convention.

In its decision of 25 July 1986 the Federal Court recalled

that it had already on 3 July 1985 decided on the issue of the

compatibility of decisions of the Federal Military Department with

Article 6 para. 1 of the Convention. Nevertheless, the Federal Court

granted the administrative law appeals for other reasons. It found in

particular that the Federal Military Department had failed to

undertake the necessary investigations for instance as to the noise

nuisance to be expected.

B. Relevant domestic law

On 16 September 1983, a popular initiative (Volksinitiative)

was submitted to the Federal Parliament, signed by 160,293 persons, in

order to insert into the Swiss Federal Constitution the following

provisions:

"Art. 24sexies Abs. 5

5. Moore und Moorlandschaften von besonderer Schönheit und

von nationaler Bedeutung sind Schutzobjekte. Es dürfen

darin weder Anlagen gebaut noch Bodenveränderungen

irgendwelcher Art vorgenommen werden. Ausgenommen sind

Einrichtungen, die der Aufrechterhaltung des Schutzzweckes

und der bisherigen landwirtschaftlichen Nutzung dienen.

Ãœbergangsbestimmung

Anlagen, Bauten und Bodenveränderungen, welche dem Zweck

der Schutzgebiete widersprechen und nach dem 1. Juni 1983

erstellt werden, insbesondere in der Moorlandschaft von

Rothenthurm auf dem Gebiet der Kantone Schwyz sowie Zug,

müssen zu Lasten der Ersteller abgebrochen und rückgängig

gemacht werden. Der ursprüngliche Zustand ist wieder

herzustellen."

"Article 24sexies para. 5:

5. Moors and moor areas of particular beauty and of

national importance shall be protected. No works may be

constructed there nor may any changes of the ground be

undertaken. Exceptionally, installations shall be allowed

which serve the purpose of protection or the hitherto

agricultural use of the land.

Transitional provision

Works, buildings and changes of the ground which are

incompatible with the purpose of the protected areas and

which have been carried out after 1 June 1983, in particular

in the moor region of Rothenthurm on the territories of the

Cantons Schwyz and Zug, must be pulled down, at the costs of

those who have undertaken them, and reversed. The original

state must be restored."

One of the purposes of the initiative was to prevent

construction of the military training site at Rothenthurm.

On 6 December 1987 a national referendum was held in

Switzerland on these provisions, whereby the majority of the voters

expressed themselves in favour of including these provisions in the

Constitution. As a result, Art. 24sexies para. 5 and the transitional

provision are now enshrined in the Federal Swiss Constitution. As

such, they take precedence over any other law or act in Switzerland.

COMPLAINTS

The applicants of Application No. 12104/86 complain that, in

the expropriation proceedings in which they were involved, they did

not have the benefit of an independent and impartial tribunal

established by law within the meaning of Article 6 para. 1 of the

Convention. In particular, the Federal Military Department was acting

as a judge in its own case. Later, the Federal Court confirmed on

3 July 1985 that it could not control the appropriateness of the

contested decisions. The applicants also complain under Article 6

para. 1 that the proceedings before the Federal Court were not

conducted in public.

The applicants of Application No. 13278/87 reiterate these

complaints. They further complain under Article 13 of the Convention

that in its decision of 25 July 1986 the Federal Court refused to deal

with the complaints raised by the applicants under Article 6 para. 1

of the Convention.

In respect of the new provisions enshrined in the Swiss

Constitution the applicants submit that while the Federal Military

Department can no longer construct the intended training areas, it has

so far not yet discontinued the expropriation proceedings. Moreover,

since the Federal Military Department is planning a new, reduced

project, new expropriations cannot be excluded. The applicants of

Application No. 13278/87 further point out that no decision on the

procedural compensation to be awarded to the applicants has yet been

given. Against this decision an appeal could again be brought before

the Federal Court.

THE LAW

1. The applicants complain that in the expropriation proceedings

in which they were involved their claims were not decided by an

independent and impartial tribunal established by law within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention. They

complain in particular that the Federal Military Department was acting

as a judge in its own case, and that the Federal Court could not fully

examine their administrative court appeals. They also complain under

Article 6 para. 1 (Art. 6-1) that the proceedings before the Federal

Court were not conducted in public. The applicants of Application No.

13278/87 further complain under Article 13 (Art. 13) of the Convention

that on 25 July 1986 the Federal Court did not deal with their

complaints under Article 6 para. 1 (Art. 6-1) of the Convention.

2. The Commission considers that Applications Nos. 12104/86 and

13278/87 concern in principle the same issue, namely the jurisdiction

of the Federal Military Department and the powers of the Federal Court

in appeal proceedings concerning expropriations, and it therefore

decides to join these applications.

3. Article 6 para. 1 (Art. 6-1), first sentence of the

Convention, insofar as relevant, provides:

"In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law".

In the Commission's opinion, the "rights" claimed by the

applicants concern property rights or rights of neighbours, and are

therefore "civil" within the meaning of this provision (see Eur. Court

H.R., judgment of Zimmermann and Steiner of 13 July 1983, Series A

No. 66, p. 10 para. 22).

4. The Commission notes that a number of the applicants of

Application No. 12104/86 are also among the applicants filing

Application No. 13278/87. An issue arises therefore as to whether in

respect of these applicants, Application No. 13278/87 is substantially

the same as Application No. 12104/86, within the meaning of Article 27

para. 1 (b) (Art. 27-1-b) of the Convention.

The Commission further observes that the applicant foundation,

rather than owning or leasing property or complaining about noise

nuisance, is filing the applications in its capacity as a protector of

the environment. Moreover, as regards the applicants of Application

No. 13278/87, the Federal Court referred on 25 July 1986, in respect

of their complaints now raised before the Commission, to its previous

decision, though the Court upheld their administrative law appeals for

other reasons. An issue arises therefore, as to whether the applicant

foundation and the applicants of Application No. 13278/87 can in this

respect be considered to be victims within the meaning of Article 25

(Art. 25) of the Convention.

The Commission is not required to resolve these issues since

the applications are in any event inadmissible for the following

reason:

5. As regards the substance of the applicants' complaints, the

Commission notes that in 1982 the Swiss Confederation instituted

expropriation proceedings in order to obtain land for the construction

of a military training area at Rothenthurm. The applicants and other

persons thereupon filed objections against the expropriations which

were decided upon by the Federal Military Department and eventually

the Federal Court. The applicants now direct their complaints under

Article 6 para. 1 (Art. 6-1) of the Convention against these proceedings,

alleging in particular that their claims were not decided by an

independent and impartial tribunal established by law within the

meaning of that provision. The applicants of Application No. 13278/87

also complain under Article 13 (Art. 13) of the Convention about the

Federal Court's decision of 25 July 1986 not to deal with their

complaints under Article 6 (Art. 6) of the Convention.

The Commission considers that in the meantime Article 24sexies

para. 5 (Art. 24-5) and the concomitant transitional provision of the

Swiss Federal Constitution have come into force which clearly prohibit

any constructions in the area and order the demolition of any

buildings constructed after 1 June 1983, at the expense of those who

undertook the constructions. It was one of the purposes of these

provisions to prevent the construction of the military training site

by the Federal Military Department. The constitutional status of

these provisions implies that any other law or act of a public

authority must comply therewith.

It is in the Commission's opinion therefore clear that the

intended military training area at Rothenthurm cannot be constructed,

and that as a result no expropriations will be effected. Since the

proceedings in which the applicants were involved concerned their

objections against these expropriations, their aim has been achieved,

albeit by other means. Insofar as the applicants of Application

No. 13278/86 submit that no decision as to the award of procedural

compensation has so far been given, the Commission considers that no

issue arises in this respect since the Convention does not guarantee

the right to an award of procedural compensation.

In these circumstances, the applicants can no longer claim to

be victims of the alleged violations of the Convention within the

meaning of Article 25 (Art. 25) of the Convention. It follows that the

applications are manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATIONS INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

APPENDIX No. 1

Application No. 12104/86

Oskar INGLIN and 8 others

&-Particulars of the applicants&-

1. Oskar INGLIN, born in 1919, a restaurant proprietor

residing at Rothenthurm

2. Wilfried SCHÖNBÄCHLER, born in 1949, a teacher

residing at Einsiedeln

3. Beatrix IMHOF, born in 1935, a housewife

residing at Rothenthurm

4. Community of heirs of Gerold KRIENBÜHL, at Zurich,

consisting of:

Beatrix IMHOF, born in 1935, a housewife residing at

Rothenthurm

Josefina Luca BUERGISSER-KRIENBUEHL, born in 1932,

a housewife residing at Neuenhof

Irmgard Anna SCHRANZ-KRIENBUEHL, born in 1934, a housewife

residing at Grüt

5. Community of heirs of Rudolf SCHULER-MARTY, at Rothenthurm,

consisting of:

Maria Magdalena ZIMMERMANN-SCHULER, born in 1957, a housewife

residing at Siebnen

Anton SCHULER, born in 1958, a farmer residing at Rothenthurm

Rita Katharina SCHÖNBÄCHLER-SCHULER, born in 1960, a housewife

residing at Willerzell

Cäcilia Elisabetha SCHULER, born in 1964, a sales person

residing at Rothenthurm

6. Josef KAELIN, born in 1942, a tile layer residing at

Rothenthurm

7. Anton SCHULER, born in 1958, a farmer residing at Rothenthurm

8. Community of heirs of Magdalena SCHULER-STYGER, at Rothenthurm,

consisting of:

Magdalena SCHULER, born in 1921, a sales person residing at

Rothenthurm

Elisabeth SCHULER, born in 1926, a packing assistant residing

at Rothenthurm

Margrit SCHULER, born in 1930, a farmer residing at

Rothenthurm

9. Stiftung World Wildlife Fund WWF Schweiz, a foundation with

its seat in Zurich

APPENDIX No. 2

Application No 13278/87

Adolf BESMER and 36 others

&-Particulars of the applicants&-

1. Adolf BESMER, born in 1951, a farmer residing at Rothenthurm

2. Josef BESMER, born in 1909, a farmer residing at Rothenthurm

3. Luisa BESMER-SCHULER, born in 1912, a housewife residing at

Rothenthurm

4. Pia BESMER, born in 1958, a housewife residing at Buttisholz

5. Anton BEELER, born in 1944, a farmer residing at Einsiedeln

6. Community of heirs of Johann BEELER-STEINER, consisting of:

Hans BEELER, born in 1939, a manager residing at Rothenthurm

Josef BEELER, born in 1934, a butcher residing at Rothenthurm,

Otto BEELER, born in 1932, a farmer residing at Rothenthurm

Ella FEDERLI-BEELER, born in 1931, a housewife residing at

Renens

Bernadette WILDHABER-BEELER, born in 1944, a housewife

residing at Sargans

7. Rudolf GIGER, born in 1934, an interior decorator residing at

Steinhausen

8. Theo MÜLLER, born in 1936, a technical adviser residing at Baar

9. Leo GWERDER, born in 1935, a distiller residing at Rothenthurm

10. Walter SCHLEISS, born in 1930, a farmer residing at Obermüsli

11. Community of heirs of Walter SCHLEISS sen., at Obermüsli

12. Herman SCHNÜRIGER, born in 1925, a farmer residing at

Rothenthurm

13. Community of heirs of Meinrad SCHULER-GRAB, consisting of:

Franz SCHULER, born in 1918, a pensioner residing at

Rothenthurm

Franz WETTER, born in 1945, a plumber residing at Schaffhausen

Anita ZENDER, born in 1930, no profession, residing at Zürich

14. Franz SCHULER, born in 1925, a horse dealer residing at

Rothenthurm

15. Josef NUSSBAUMER sen., born in 1921, a farmer residing at

Rothenthurm

16. Josef NUSSBAUMER jun., born in 1947, a factory worker residing

at Rothenthurm

17. Franz NUSSBAUMER, born in 1954, a farmer residing at

Rothenthurm

18. Beat NUSSBAUMER, born in 1958, a building machine driver

residing at Rothenthurm

19. Werner INGLIN, born in 1953, a farmer residing at Rothenthurm

20. Agnes SCHULER, born in 1936, a housewife residing at

Rothenthurm

21. Theres SCHULER, born in 1938, a restaurant proprietor residing

at Rothenthurm,

22. Oskar INGLIN, born in 1919, a restaurant proprietor residing

at Rothenthurm,

23. Wilfried SCHÖNBÄCHLER, born in 1949, a teacher residing at

Einsiedeln

24. Beatrix IMHOF, born in 1935, a housewife residing at

Rothenthurm

25. Community of heirs of Gerold KRIENBÜHL at Zurich,

consisting of:

Beatrix IMHOF-KRIENBÜHL, born in 1935, a housewife residing in

Rothenthurm,

Josefina Luca BÜRGISSER, born in 1932, a housewife residing at

Grüt

26. Community of heirs of Rudolf SCHULER-MARTY at Rothenthurm,

consisting of:

Maria Magdalena ZIMMERMANN, born in 1957, a housewife residing

at Rothenthurm

Anton SCHULER, born in 1958, a farmer residing at Rothenthurm

Rita Katharina SCHÖNBÄCHLER, born in 1960, a housewife

residing at Einsiedeln

Cäcilia Elisabetha SCHULER, born in 1964, a sales person

residing at Rothenthurm,

27. Josef KÄLIN, born in 1942, a tile layer residing at

Rothenthurm,

28. Anton SCHULER, born in 1958, a farmer residing at Rothenthurm

29. Community of heirs of Magdalena SCHULER-STEYGER, at

Rothenthurm, consisting of:

Magdalena SCHULER, born in 1921, a sales person residing at

Rothenthurm

Elisabeth SCHULER, born in 1926, a packing assistant residing

at Rothenthurm

Margit SCHULER, born in 1930, a farmer residing at Rothenthurm

30. Stiftung World Wildlife Fund WWF Schweiz, a foundation with

its seat in Zürich

31. Wilfried BAER, born in 1933, a bank teller residing at

Oberägeri

32. Alois BLATTMANN sen., born in 1922, a factory worker residing

at Oberägeri

33. Alois BLATTMANN jun., born in 1949, a farmer residing at

Oberägeri

34. Gottlieb HEINRICH, born in 1932, a labourer residing at

Oberägeri

35. Werner HEINRICH, born in 1939, a farmer residing at Oberägeri

36. Alois MEIER, born in 1949, a gardener residing at Alosen

37. Bernhard WIESER, born in 1923, a manager residing at Zürich

Menu

INGLIN and 8 Others BESMER and 36 Others v. SWITZERLAND

INGLIN and 8 Others BESMER and 36 Others v. SWITZERLAND

LEXI