12104/86_13278/87

 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