STEINER AND STEINER-FASSLER v. SWITZERLAND

THE FACTS

1. The case originated in an application (no. 18600/13) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Swiss nationals, Mr Edwin Steiner and Mrs Ottilia Steiner‑Fässler (“the applicants”), on 11 March 2013.

2. The applicants were represented by Mr L. Stamm, a lawyer practising in Baden. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the Federal Office of Justice.

3. The applicants alleged a violation of Article 6 as documents relating to the construction of both a paved sidewalk and a gravel walk along the river bank adjacent to their property in 1984 were not made accessible to them. Furthermore, they complained that the new route of the path across their property was contrary to Article 8.

4. On 29 May 2013 the application was communicated to the Government.

A. The circumstances of the case

5. The applicants are Swiss nationals, who were born in 1938 and 1944 respectively, and live in Alpthal in the canton of Schwyz.

1. Background to the case

6. The facts of the case, as submitted by the applicants, may be summarised as follows.

7. In the canton of Schwyz, the Way of St James (Jakobsweg), a network of medieval pilgrimage routes leading through several European countries to Santiago de Com­poste­la in the northwest of Spain, runs from Einsiedeln via Alpthal to the city of Schwyz.

8. In the past years, the approximately 1.5 kilometre long route between Chriegmatt and Gämschtobel­bach ran along the main road on a paved sidewalk on the left side of the river Alp.

9. In July 1984, heavy storms caused severe damages in the region. The banks of the river Alp had to be lined and the surroundings to be reconstructed. Considered to be urgency measures these works were done without any formal authorisation procedure.

10. In 2003, the authorities of the canton of Schwyz intimated their intention to move this route of the Way of St James to the right side of the river Alp, on a forest path intersecting the applicants’ property for 7 metres (on the south-western side) and 17 metres (on the north-western part) respectively. Moreover, the forest road leads through a low-level moor of national importance (inventory no. 3154), which is constitutionally protected (see paragraph 17 below).

11. On 1 July 2006, the applicants, their children, representatives of the district council and the district administration, as well as the director of the cantonal office for forests, hunting and fishing, inspected the site. The applicants declared that they would not tolerate the new path through their property, owing to several unfriendly confrontations with hikers and the littering by hikers and their dogs. On 3 July 2006, the director of the cantonal office for forests, hunting and fishing, who was hierarchically subordinate to the department of economy of the canton of Schwyz, signed a memorandum (Aktennotiz). This memorandum stated that the relevant legislation would allow the compulsory acquisition of the easement (Wegrecht), if it could not be acquired on a voluntary basis by the canton; however, taking into account the applicants’ health and well-being, renunciation was declared and it was decided not to enforce the easement (“Auf die rechtliche Durchsetzung des Wegrechts [...] wird verzichtet.”). In return, the applicants declared that they would tolerate “until further notice” the Iron Bike Race, which takes place once a year, through their property.

2. The procedure before the cantonal department of environment

12. By the beginning of 2009, the department of environment of the canton of Schwyz decided to transfer the Way of St James to the right side of the river Alp. The explanatory report of the land use zoning plan, published for public consultation between 29 October and 29 November 2010, stated that it was difficult to understand why the pilgrims and hikers should walk on a not very appealing paved sidewalk when there was a shady and idyllic forest gravel walk on the other side of the river. The applicants’ objection was dismissed by the cantonal depart‑ment of environment on 19 January 2011.

The department explained that throughout recent years, the municipality of Alpthal, the district of Schwyz and the Swiss Association for Hiking Trails had tried in vain to find an adequate solution with the Steiner-Fässler family. Recently, the applicants had explicitly refused further talks with regard to a friendly settlement. The decision held, inter alia, that the two portions of land where the path intersected the property of the applicants were classified as forest areas; these are, by law, publicly accessible (see paragraph 18 below). Furthermore, the memorandum of 3 July 2006 had no binding force for the department of environment: the assurance had been issued by an authority which did not have competence and, after the assurance, the applicants had not made any irreversible disposition in respect to their property. Therefore, the principle of good faith had not been violated (see paragraph 16 below).

3. The appeal to the cantonal council and the administrative court

13. On 31 May 2011, the council of the canton of Schwyz (the cantonal government) dismissed the applicants’ appeal. On reviewing the facts, the council observed that the applicants’ house was 70 metres away from the gravel walk and only two small portions of the land of the applicants were intersected by the path. Therefore, the council found the interference in the applicants’ property to be marginal and tolerable. It admitted that the memorandum of 3 July 2006 might constitute a basis for legitimate expectations. However, the council added that owing to the preponderant public interest in a “safe and appealing” Way of St James, the legitimate expectations of the applicants were not protected.

14. On 21 September 2011, the administrative court of the canton of Schwyz dismissed the applicants’ appeal, basing its decision on the same grounds as the administrative authority. The applicants’ request to have access to, inter alia, the construction permit of 1984 de­monstra­ting that the original Way of St James had historically always run on the left side of the river Alp and that the forest path on the right side of the river was constructed in 1984 was not granted. The administrative court explained that owing to severe storms in 1984 the banks of the river Alp had had to be lined.

In order to find out the exact historical route of the Way of St James, the court made several inquiries. On 10 August 2011, it asked the department of environment of the canton of Schwyz for further information. The department, however, was not able to clarify the situation. The department submitted that the relocation of the path on the sidewalk was being done without any formal procedure. According to a letter of the office for cultural landscapes of 21 May 2005, it could be presumed that the pilgrims used to walk on the right side of the river Alp (i.e. on the forest path). Based on that evidence, the court observed that the situation remained unclear. It further noted that the severe storms in 1984 had required a swift reconstruction of the affected area, including the lining of the river banks. In the present case, the court held that the exact historical route of the Way of St James was not decisive since, after the storms, no historical substance was left and the path could be relocated to the other side of the river Alp without any loss in quality. The court concluded that after all the judicial fact-finding it had undertaken the request of the applicants was not pertinent and had therefore to be refused.

4. The appeal before the Federal Supreme Court

15. By a judgment of 22 August 2012, notified to the parties on 11 September 2012, the Federal Supreme Court dismissed the applicants’ appeal. The request of the applicants to receive the construction permit of 1984 was not granted for lack of pertinence to the case. Furthermore, the Federal Supreme Court found that, according to the Federal Hiking Trail Act, historical trails are only to be included in the network of hiking trails if it is possible to do so (“nach Möglichkeit”; see paragraph 19 below).

With regard to the memorandum of 3 July 2006, the court held that regardless of whether the applicants should have recognised the lack of competence of the director of the cantonal office for forests, hunting and fishing to issue an assurance, the agreement between the applicants and the authorities could be freely revoked (for example, the memorandum explicitly set out that the applicants were willing to tolerate “until further notice” the Iron Bike Race through their property). Furthermore, the Federal Supreme Court held that the applicants had not suffered any disadvantage from relying upon the memorandum.

B. Relevant domestic law and practice

16. Article 9 of the Federal Constitution of the Swiss Confederation of 18 April 1999 (Classified Compilation of Federal Laws no. 101) protects the individual against arbitrary conduct and contains the principle of good faith. It reads:

“Everyone has the right to be treated by the state authorities in good faith (...).”

According to the case law of the Federal Supreme Court (see, inter alia, the leading case 129 I 161, 170 [X. v. City of Chur]), Article 9 of the Federal Constitution confers on every person the right to rely in good faith on assurances issued by authorities, if four conditions are met:

(A) a basis for good faith (Vertrauensgrundlage), i.e. a conduct of the administration (for example an assurance) raising a certain expectation in the individual;

(B) a legitimate expectation (berechtigtes Vertrauen), i.e. that the person who claims a right from the protection of good faith was entitled to trust on that basis, whereby the assurance of the authority must not be abstract, but related to a given issue;

(C) a disposition made in good faith (Vertrauensbetätigung), i.e. that the concerned person has made, based on the conduct of the administration, a disadvantageous disposition, which cannot be undone; and

(D) the absence of preponderant public interests.

17. Article 78(5) of the Federal Constitution reads as follows:

“Moors and wetlands of special beauty and national importance shall be preserved. No constructions may be erected on them and no changes may be made to the land, except for the construction of facilities that serve the protection of the moors or wetlands or their continued use for agricultural purposes.”

18. Article 699 of the Swiss Civil Code of 10 December 1907 (Classified Compilation of Federal Laws no. 210) reads as follows:

“1 Any person has the right to enter woodlands and meadows and to gather wild berries, funghi and the like to the extent permitted by local custom except where the competent authority enacts specific limited prohibitions in the interests of conservation.

2 Cantons may enact more detailed regulations on access to land owned by others for the purposes of hunting and fishing.”

19. Articles 3 and 7 of the Federal Hiking Trails Act of 4 October 1985 (Classified Compilation of Federal Laws no. 704) stipulate:

“Article 3 Network of Hiking Trails

1 Hiking trails shall essentially serve recreational purposes and shall generally lie outside of settlement areas.

2 Hiking trails shall be conveniently connected between each other. Other paths, parts of sidewalks and less frequented roads may serve as coupling links. Historical trails are if possible to be included [into the network of hiking trails].

3 The network of hiking trails shall especially encompass areas suitable for recreation, quaint landscapes (scenic views, river borders etc.), cultural attractions, public transport stops as well as touristic facilities.”

“Article 7 Replacement

1 (...)

2 Hiking trails are to be replaced in particular:

a.-c. (...)

d. if their pavement is – on longer distances – unsuitable for pedestrians. (...)”

20. Article 6 of the Federal Hiking Trails Ordinance of 26 November 1986 (Classified Compilation of Federal Laws no. 704.1) defines which pavements are not suitable for hiking trails:

“Unsuitable in the sense of Article 7(2)d of the Federal Hiking Trail Act are namely all pavements consisting of bitumen, tar or concrete.”

21. Article 13(3) of the Ordinance of the Canton of Schwyz on the Federal Hiking Trails Act of 18 May 2004 (Classified Compilation of the Laws of the Canton of Schwyz no. 443.210) reads as follows:

“Rights can be expropriated according to the cantonal expropriation provisions if they cannot be acquired free-hand.”

COMPLAINTS

22. The applicants complained under Article 6 § 1 of the Convention that the Swiss authorities and courts refused to provide the evidence relating to the construction of both the paved sidewalk and the gravel walk in 1984 after severe storms had taken place.

23. The applicants further complained under Article 8 of the Convention that the Swiss authorities and courts did not respect their right to home and in particular that they were not willing to grant protection to the memorandum of 3 July 2006.