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.
Übergangsbestimmung
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