Application No. 12421/86
                      by Paul and Gerda MEIER-SAX
                      against Switzerland

        The European Commission of Human Rights sitting in private
on 11 May 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
                  G. BATLINER
                  H. VANDENBERGHE
             Mrs.  G.H. THUNE
             Sir  Basil HALL
             MM.  F. MARTINEZ
             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 application introduced on 26 May 1986
by Paul and Gerda Meier-Sax against Switzerland and registered
on 30 September 1986 under file No. 12421/86;

        Having regard to:

-       the first report of April 1987 provided for in Rule 40 of the
        Rules of Procedure of the Commission;

-       the Commission's decision of 8 May 1987 to bring the
        application to the notice of the respondent Government and
        invite them to submit written observations on the
        admissibility and merits of the application;

-       the observations submitted by the respondent Government on
        14 July 1987 and the reply submitted thereto by the applicant
        on 30 September 1987;

-       the second Report of April 1987 provided for in Rule 40
        of the Rules of Procedure of the Commission.

        Having deliberated;

        Decides as follows:


        The facts of the case, as submitted by the parties, may be
summarised as follows:

        The applicants, Swiss citizens born in 1930 and 1931,
respectively, are a married couple.  The first applicant is a riding
teacher, the second a housewife.  Before the Commission they are
represented by the Corporation for Protection in Expropriation Matters
(AG für Rechtsschutz in Enteignungssachen) which in turn is
represented by Mr.  L.A. Minelli, a lawyer and journalist residing at

I.      Particular circumstances of the case

        The applicants have been renting, since 1 April 1980, from one
Mrs.  M.R.-I. in Rothenturm/Switzerland a four room apartment as well as
a stable and a barn.  The applicants eventually converted the stable
into a horsestable where they kept two horses.

        In the immediate vicinity of this apartment military shooting
exercises and shooting demonstrations took place which allegedly
disturbed the applicants.  The noise apparently frightened the
applicants' horses to such an extent that it endangered the
applicants' life to enter the stable.  Moreover, it appears that
soldiers participating in the exercises attempted to open the stable
at night and use it as a sleeping place.  Finally, military vehicles
circulated until late at night.

        On 30 March 1984 the applicants and Mrs.  M.R.-I. requested the
Federal Military Department (Eidgenössisches Militärdepartement) to
institute expropriation proceedings.  They claimed in particular that
for some time the shooting had brought about considerable disturbances
(Immissionen) which did not have to be endured from a civil law point
of view.

        On 1 June 1984 the Military Department, through a lawyer
acting on its behalf, informed the applicants that it did not intend
to institute expropriation proceedings since there was nothing to
indicate that the disturbances had been excessive.  The shooting
exercises had taken place for twenty years without any complaints
having ever been made.  In any event expropriation proceedings
could only be instituted if the disturbances could not be eliminated at
all, or only at a disproportionate expense.  However, the applicants
had failed to provide such information as might enable the Department
to reduce the noise.

        On 29 June 1984, the applicants and Mrs.  M.R.-I. filed an
administrative court appeal (Verwaltungsgerichtsbeschwerde) with the
Federal Court (Bundesgericht).  The appeal numbered 18 pages.  Therein
they asked the Court to state that their request to institute
expropriation proceedings had been wrongly refused.

        They also asked the Federal Court to order the institution of
such proceedings.  The applicants alleged inter alia that, since the
shooting site was the cause for the disturbances, it had not been
possible for them to bring an action before a civil law judge.  They
could only request the expropriating agency, i.e. the Swiss
Confederation, formally to institute expropriation proceedings.  Since
the Confederation had refused to do so, the applicants were entitled
to employ legal remedies.

        The applicants complained furthermore, inter alia, that the
reply of the Federal Military Department contained no instructions
as to further remedies (Rechtsmittelbelehrung) and the lawyer who had
issued the reply had not been the competent authority.  They further
alleged that it was not up to the Federal Military Department to state
that the conditions for instituting expropriation proceedings had not
been met, since that Department was itself a party to the proceedings.
Otherwise, the right enshrined in Article 6 para. 1 of the Convention
to an independent and impartial tribunal would be jeopardised.

        The applicants also argued (pp. 8-17 of their appeal) that
Article 98 of the Decree of the Federal Assembly on the Administration
of the Swiss Army (Beschluss der Bundesversammlung über die Verwaltung
der schweizerischen Armee) of 1949 did not provide a sufficient legal
basis for the Federal Military Department to permit expropriation, and
the opinion expressed by the Federal Court in a previous decision
(Arrêts du Tribunal Fédéral [ATF] 109 Ib 130, Besmer) was untenable
(see below "Domestic legal situation and practice").  The applicants
submitted inter alia that Article 98 of the Decree had been abrogated
by the subsequent Act on Parliamentary Procedure
(Geschäftsverkehrsgesetz) of 1962 and that the Federal Military
Department had never been granted the powers to expropriate.  Thus, the
expropriation procedure should be instituted by the Federal Council
(Bundesrat) as such, and not by one of its departments.

        On 12 September 1984 the Federal Military Department lodged
with the Federal Court its observations on the appeal (Vernehm-
lassung).  Therein, the Department pointed out that the lawyer's reply
of 1 June 1984 had not constituted a formal order (Verfügung) and was
therefore not appealable.  Rather, the applicants should have insisted
that the Department issue a proper order.

        On 18 June 1986 the Federal Court gave its decision in which
it upheld the applicants' administrative court appeal.  In particular,
it invited the Federal Military Department, through the President of
the Federal Assessment Commission for the Ninth District, to institute
expropriation proceedings in which the applicants' request for
compensation should be decided upon.  The Court's decision, which
numbered 19 pages, was served on the applicants on 19 September 1986.

        The Federal Court found that according to its case-law private
persons could not in such cases directly approach the Federal
Assessment Commission.  Instead, they had to request the respective
enterprise itself to institute expropriation proceedings.  The refusal
of the Federal Military Department to do so had correctly been
attacked by means of an administrative law appeal.  The Court also
found that the applicants were entitled to bring proceedings on the
basis of the reply by the lawyer in question since the Department
had told the applicants that it would be represented by the

        In respect of the substance of the complaint the Federal Court
held that both the constitutional guarantee of property and Article 6
of the Convention implied that court proceedings had to be available
in the case of formal expropriation.  In this respect the Federal
Assessment Commission had to decide in matters of nuisance
(Nachbarrechtsverletzungen) not only on the amount of compensation to
be awarded, but also whether or not such claims were justified at all.
Thus, the Department had incorrectly refused access to this Commission
inter alia by contesting that the disturbances had been excessive,
i.e. for reasons which actually concerned the material justification
of the claim.  The Department could only have refused to institute
expropriation proceedings if, for instance, the claims had expired, or
if it was manifest that the Federal Assessment Commission was
not the competent body.

        Finally, the Court found (at pp. 7-13) that the Act on
Parliamentary Procedure of 1962 had never been intended to abrogate
previous laws such as the 1949 Decree.  It then considered the question
whether the Federal Military Department was the competent body to
institute expropriation proceedings.  The Court referred to its
previous decision (ATF 109 Ib 130) according to which it was possible
for the Federation to delegate the power to expropriate to third
persons by means of such a Decree.  A fortiori it was possible to
delegate this power by means of a Decree such as the one of 1949 to a
department within the Government.  In respect of the present
applicants' additional complaints the Court found that such a
delegation could be given either in respect of a single expropriation,
or in general.

II.     Relevant domestic law and practice

        Under Swiss law, a private person cannot as a rule directly
institute expropriation proceedings before a civil law court against a
public authority such as the Federal Military Department (cf.  ATF 112
Ib 176; 110 Ib 368; 106 Ib 241).  Rather, it is the public authority
itself which must act in such cases as the plaintiff and bring the
case before a Federal Assessment Commission.  It may refuse to do so,
for instance, if the claim has expired, or the Federal Assessment
Commission is not the competent body.  This refusal can be challenged
before the Federal Court.

        Once the Federal Assessment Commission has been seized, the
latter will decide on the justification and, possibly, the amount of
the compensation claim.  Compensation is granted if the noise
disturbance is serious and intensive; if it affects the individual
in a very special way; and if the disturbance was not
foreseeable.  That Commission's decision can again be challenged before
the Federal Court.

        The legal basis of the Federal Military Department's
competence to expropriate played a part in an earlier decision of the
Federal Court of 3 June 1983 (ATF 109 Ib 134, the Besmers and others).
Those applicants claimed that the Department had no right to
expropriate, as the Decree of the Federal Assembly on the
Administration of the Swiss Army of 30 March 1949, on which the
Department relied, provided an insufficient basis.

        In ATF 109 Ib 134 the Federal Court discussed this question in
an obiter dictum.  It found that the 1949 Decree was not itself the
legal basis since it only determined the competent body.  The power to
expropriate, as embodied in the Federal Expropriation Act, could
always be delegated by the Federation to third persons by means of a
Federal Decree not subject to a referendum, as long as the
expropriation occurred in the interests of the country.  A fortiori,
the power to expropriate could be delegated by a decree such as the
one of 1949 within the Government to the Federal Military

        This issue was again raised in the administrative court appeal
of the present applicants of 29 June 1984, though they now argued that
the 1949 Decree had been abrogated by the 1962 Act on Parliamentary
Procedure (see above p. 3).  On 8 July 1985 the Besmers and others
filed a further administrative court appeal raising inter alia the
same issue.  In its decision on this last appeal of 25 July 1986,
containing 81 pages, the Federal Court largely reiterated (at pp.
45-51) the arguments stated in its decision concerning the present
applicants of 18 June 1986.


        The applicants now complain of the undue length of the
proceedings before the Federal Court.  In particular, the issue to be
decided by the Court was neither new nor complicated since the Court
itself had elaborated the necessary legal arguments as to the position
of private parties vis-à-vis a public authority in a previous
decision (ATF 110 Ib 368).  It was thus inadmissible that proceedings
which only had procedural implications had lasted so long.  There was
thus the danger that the applicants' material claims, which would have
to be examined in the main proceedings were threatened by prescription.


        The application was introduced on 26 May 1986 and registered
on 30 September 1986.

        On 8 May 1987 the Commission decided to bring the application
to the notice of the respondent Government and to invite them pursuant
to Rule 42 para. 2 (b) of the Rules of Procedure to submit observations
on its admissibility and merits, in respect of the complaint under
Article 6 para. 1 of the Convention concerning the length of the

        The respondent Government's observations were submitted on
14 July 1987 and the reply thereto by the applicant on 30 September 1987.


A.    The respondent Government&-

I.      The facts

        The Government's submissions as to the facts have been
included in THE FACTS above.

II.     General considerations

        The Swiss Government first recapitulate the principal
conclusions to be drawn from the Zimmermann and Steiner case and the
measures taken by the Swiss authorities in order to comply with the
judgment of the Court (Eur.  Court H.R., judgment of 13 July 1983,
Series A No. 66; Resolution DH(83)17 of the Committee of Ministers
adopted under Article 54 of the Convention on 9 December 1983).  That
case also concerned the duration of proceedings before the Federal
Court deciding on an administrative court appeal which fell within the
framework of expropriation procedures related to noise disturbance.
In recent years various measures have been taken in order to remedy
the excessive and growing workload of the Federal Court.  However, in
the Zimmermann and Steiner case, the Court considered that the
arrangements made by the Swiss authorities prior to the judgment in
that case of the Federal Court of 15 October 1980, while reflecting a
genuine will to tackle the problem, had not sufficiently taken into
account the structural nature of the excessive workload of the Federal
Court and consequently had yielded unsatisfactory results, so that
those measures could not be deemed sufficient (ibid. para. 31).

        Thus, on 20 March 1981 the Swiss Federal Assembly adopted a
Federal Decree which raised from 28 to 40 the posts for registrars and
secretaries at the Federal Court, whose administrative staff was also
reinforced.  When the Committee of Ministers came to examine, pursuant
to Article 54 of the Convention, the judgment given by the European
Court, the Swiss Government supplied to the Committee of Ministers
information concerning the general measures it was taking, in
particular in respect of a total revision of the 1943 Federal
Judicature Act (Organisationsgesetz).  Thus the Swiss Government
decided on 19 October 1983 to put a proposal to Parliament to
reinforce the Federal Court, which at present includes 30 judges and
15 substitute judges, for a limited period with fifteen part-time
substitute judges.  The Government cite from their message to the
Federal Assembly:

        "The Federal Court, by reason of its excessive
workload, will encounter ever greater difficulty in
protecting the citizen under the law in accordance with its
constitutional function.

        That protection encompasses the individual's right
to have his case determined within a reasonable time, as
expressly guaranteed by (Article 6 para. 1 of the
Convention).  That right is violated when an administrative
court appeal is not settled until three and a half years
after being lodged, failing relevant grounds to warrant so
lengthy a procedure.  The excessive workload of a court
cannot alone constitute such grounds.  It is therefore up to
the competent authorities to remedy such a situation ...

        It follows from the foregoing that it is vital that
steps are taken as a matter of urgency to reduce the
accumulated backlog and speed up the proceedings before the
Federal Court" (FF 1983 IV p 485).

        In a Federal Decree of 23 March 1984, the Swiss Parliament
decided as a result to increase to 30 the number of substitute judges
at the Federal Court and to set a maximum of 46 on the number of
registrars and secretaries at the Federal Court.  Those measures will
be effective until 31 December 1988.

        In addition, in order to provide a more fundamental remedy to
the structural excessive workload of which the Federal Court is suffering,
the Federal Council (Bundesrat) has put a series of reforms before
Parliament in its message of 29 May 1985 for a revision of the Federal
Judicature Act.  The Government cite here the message to the Swiss
Federal Parliament:

"In the short term (the increase in the number of judges and
secretaries is) providing the requisite relief.  But if
these measures are repeated at regular intervals, they lead
to an unlmited increase in staff at (the Federal Court and
the Federal Insurance Court).

        Other procedural and organisational measures are
required, both in order to avoid such an increase and to
relieve the burden on the courts in the long term.  They
should enable the Federal Courts to reduce the length of
their proceedings to an acceptable duration.  They ought
also to restore to those courts the possibility of devoting
themselves not simply to the judicial protection of the
citizen, but also to other primary tasks, namely the proper,
uniform application of the law and its development on
important points.  Overall, the relief measures taken
will make it possible to guarantee the quality of
decision-making and focus the jurisdiction of our Supreme Courts
on their essential tasks.  Needless to say, there can be
no question of these measures adversely affecting the
procedural guarantees which the Constitution affords
to the citizen.

        Among the measures designed to lighten the workload,
the admissibility procedure instituted for the two Federal
Courts plays a paramount role.  Normally, the litigant will
no longer be able to appeal to one of these courts unless
his case is important.  Needless to say, the admissibility
procedure is applicable only if the contested decision was
taken by a judicial authority.  It is then necessary to
develop the administrative jurisdiction at the lower level,
whether federal or cantonal.

        There are also other measures to limit access to our
supreme courts or make it more difficult:  the increase and
extension of the value of litigation in civil proceedings,
the strict limitation placed on the scope of administrative
court appeals and the exhaustion of cantonal remedies for
the purposes of a public law appeal.  We should also mention
the increase in legal fees at the Federal Court and the
introduction of the same regulations concerning costs before
the Federal Insurance Court.

        On the other hand, there are measures intended to
simplify the decision-making procedure of the Federal
Courts.  The bench of three judges, for example, has been
made general, and the simplified procedure (without public
hearing) has been extended to all divisions of the Federal
Court.  Limits are set on pleadings in civil law appeals ....

        Lastly, the Federal Council takes the opportunity to
propose amendments to various federal procedural laws in
order to bring them into line with the European Convention
on Human Rights.

        The temporary increase in the number of substitute
judges at the Federal Court ... is a transitional measure.
It is destined to be replaced at the end of 1988 by the
improvements afforded by the present project" (FF 1985 II
p. 743 ff).

        One chamber of Parliament, the National Council, has already
given the text proposed by the Federal Council a first reading.  The
other chamber is currently examining it.

        Finally, the Government refer to a report which the Federal
Court submitted on 11 February 1987 to the Swiss Parliament on its
management in 1986.  That report shows the determination of the Swiss
authorities to find solutions which provide an effective remedy to the
chronic overload of the Federal Court, which receives more than 4,000
appeals each year - a considerable figure compared to the number of
appeals lodged with other national constitutional courts.  The
following passage is cited from this report:

        "The statistics ... show that the number of incoming
cases is much the same as in the previous year and continues
to be greatly in excess of 4,000.  It is gratifying to note
that, for the first time since 1985, it was possible to
dispose of more cases than the number of new registrations,
with the result that 70 fewer cases than in the previous
year are carried over to next year.  The 30 substitute
judges have contributed much to this result by producing
some 500 reports.  The fact remains, however, that despite
the emergency measures taken pursuant to the Federal Decree
of 23 March 1984, there is no prospect of reducing the
delays significantly.  One positive point to be made is that
almost all the cases introduced more than two years ago and
which were not adjourned have been disposed of.

        On 8 September 1986 the plenum decided to support
the plan to introduce an admissibility procedure, despite
the negative opinion received from the (parliamentary)
Committee of the National Council.  The Court rejects the
idea of any increase in the number of judges.  On the other
hand, it considers that the number of registrars and
secretaries should be increased to 75 (legal secretaries and
assistants) as part of the Court's reorganisation.  Since
(early 1987), a working party of five has been concerned
with planning the Court's future work from the point of view
of organisation and premises.  First and foremost, it must
look for ways of making the necessary improvements in the
judges' present working conditions.  The Federal Assembly
had invited the Federal Courts, under the 1986 budget, to
commission efficiency studies in the administrative field

        The staff of the Federal Court comprises 110 posts
(46 legal secretaries, 7 persons in the documentation and
the editing service of the ATF collection, 4 and a half
positions in the library, 4 persons in the computer section
and 48 and a half positions in the chancellery and
administration section).  The chancellery was partly
decentralised in the course of the year....  A start was
made on computerisation of the Court's administrative work
in early March, but in practice this has fallen short of
expectations.  The main reason for this has been the change
at the head of the service, but there have also been
difficulties over the choice of a suitable programme better
geared to actual requirements.  Because of these problems,
delays must be expected in extending computerisation to other
fields" (p.411 f).

        The present case which was the subject of an appeal to the
Federal Court in 1984 is precisely one of the cases to which the
Federal Court refers in its report as having been dealt with within a
two-year period thanks to the measures taken, and it is rare for that
time limit to be exceeded today.

III.    Admissibility and merits of the application

        It is the constant case-law of the Convention organs that the
reasonableness of the length of the proceedings falling under Article
6 para. 1 of the Convention is assessed according to the particular
circumstances of each case.  In particular, regard must be had to the
complexity of the factual or legal issues of the case, the conduct of
the applicants and of the authorities, and what was at stake for the
former.  Moreover, only delays attributable to the State may justify
the finding of a failure to comply with the requirement of a
reasonable time (cf. inter alia the Zimmermann and Steiner judgment,
ibid. p. 11 para. 24).

a.      The period to be taken into consideration

        The applicants complain essentially of the length of the
administrative court appeal proceedings before the Federal Court,
which was nearly two years.  The appeal to the Federal Court was
lodged on 29 June 1984, and judgment was given on 18 June 1986.  The
length of the period at issue was therefore in fact one year, eleven
months and nineteen days.

b.      Complexity of the case

        The applicants consider that their case was not particularly
complex, since it had already been the subject of an analagous
judgment by the Federal Court (ATF 110 Ib 368).  However, the picture
is not quite so simple.  In their administrative court appeal of
29 June 1984, the applicants first raised the questions whether the
owner of public property is required to refer an expropriation
procedure to the Federal Assessment Commission when a private
individual complains of excessive emissions from that property.
Secondly, they raised the question whether the owner is able to object
to the opening of that procedure by arguing that the said emissions
are in no way excessive.  This question the Federal Court has already
decided in ATF 110 Ib 368.

        In addition, however, the applicants also claimed that the
Federal Military Department was not competent to initiate an
expropriation procedure, since S. 98 of the Federal Decree on the
Administration of the Swiss Army of 30 March 1949 provided an
insufficient legal basis in their opinion, as that decree had not been
subject to a referendum and had been abrogated by the 1962 Federal Act
on Parliamentary Procedure.  The applicants claimed that the Federal
Court therefore had to invite the Federal Council to initiate the
expropriation procedure.

        It was the applicants' lawyer who first referred to
the Federal Court the question whether it is the Federal Military
Department which, through the intermediary of the Federal Assessment
Commission, is able to initiate the expropriation procedure and have
it executed or whether a decision of the Federal Council is necessary
for that purpose.  The Federal Court pronounced on this delicate issue
for the first time in a decision of 3 June 1983 given in the case of
Besmer and others (ATF 109 Ib 130).  That judgment, delivered at
the end of a complex procedure relating to the bulding of new military
grounds at Rothenthurm, did not however discuss this question except
in a number of incidental considerations which were really obiter
dicta.  Those appellants severely criticised this part of the
Federal Court's judgment.  They again argued that the Federal Military
Department had no competence in the objection procedure which took
place before the Department itself and, after that conclusion was
rejected, argued the same point again in additional submissions to the
Federal Court.  A measure of this is given by the fact that the further
administrative court appeal lodged by those applicants on 8 July 1985
comprised no less than 240 pages.

        In the meantime, the present applicants once again put forward
the same arguments before the Federal Court.  Basing themselves on the
preparatory work for the 1962 Act, they invited the Court to consider
these questions with all requisite care and attention to detail ("sich
'eingehender und gründlicher' mit diesen Fragen auseinanderzusetzen").

        The Federal Court considered that there were grounds for
re-examining all the various objections and complaints that had been
raised in these various proceedings which, in view of the stage of
preparation reached in the second Besmer case, was not possible before the
spring of 1986.  That is why the question of the competence of the
Federal Military Department to initiate the expropriation procedure is
not only dealt with in detail in the Federal Court's decision
concerning the present case but also, in even more detailed form, in
the judgment of Besmer and others of 25 July 1986 (to be published

        It is clear from the foregoing that, in the Swiss Government's
view, the legal issues raised - in a markedly political context - were
of major legal difficulty necessitating detailed examination by the
Federal Court.  These circumstances in themselves provide objective
justification for the duration of the procedure, which did not exceed
reasonable limits.

c.      Conduct of the applicants

        The Government refer to the applicants' submissions according
to which, since 12 September 1984, when the Federal Military
Department submitted its observations on the pending appeal, the
Federal Court remained inactive.  They also argue that it is
inadmissible under international law for a procedure which entailed
only an incidental question of determination by a competent body to
have taken almost two years to be dealt with.

        In the Government's view it is thus abundantly clear that the
applicants wished the Federal Court to re-examine in greater detail
questions to which, in their opinion, the Court had not given the
necessary care, simply confining itself to a few considerations by way
of "obiter dicta".

        The Government emphasise that the applicants adopt a
contradictory approach: they demand that the domestic authorities
should carry out the most detailed possible examination and then seek
to draw advantage, unilaterally, from the length of proceedings which
was in part attributable to that detailed examination.

d.      Conduct of the Swiss authorities

        The Government believe that the care with which the
Federal Court examined the complex contentious issues cannot be
criticised.  The length of the proceedings stems from the fact that
several similar cases were inter-related, raising the same question of
principle which the Federal Court was required to analyse.

        Admittedly, in the current expropriation procedure the
procedural stage constituted by the present contentious proceedings
lasted some 27 months, i.e. from 30 March 1984 when the applicants
addressed themselves to the Federal Military Department, until
18 June 1986 when the Federal Court gave its judgment.  However, this
procedural stage before the Swiss domestic authorities took place
almost wholly before the Federal Court:  the case was referred to that
Court on 29 June 1984, i.e. three months after the applicants first
approached the Swiss authorities.

IV.     Conclusions

        In view of the foregoing considerations, the Government invite
the Commission to declare the application inadmissible as being
manifestly ill-founded within the meaning of Article 27 of the

B.    The applicants&S

I.      The facts

        The applicant's submissions as to the facts have been included
in THE FACTS above.

II.     General

        The Government point to the general measures which have been
in force for some time in Switzerland, and aim at reducing the length
of proceedings before the Federal Court.  Some of these measures
brought about a certain increase in the numbers of legal and
administrative officers in the Federal Court as well as the
appointment of fifteen substitute judges, whose job it is to diminish
the arrears in cases.

        Here, it should be noted that this increase primarily concerns
the execution of judgments after the Federal Court has passed
sentence, and cannot have any or much effect on the time that elapses
between the lodging of the appeal with the Federal Court and the
decision of the competent chamber.  The only period which may
possibly be shortened by this measure is the one between the
notification of the formal judgment and the serving of the reasons of
the judgment.

        The appointment of interim judges as officials responsible for
individual cases has not eased the Court's work-load.  The Court
itself made the following statement in its report of 18 February 1986:

        "If it is considered that the 15 substitute judges
have been on duty throughout the year, and have drawn up
reports in altogether 300 cases, the overall number of cases
settled came to more or less the same as for 1984.  On the
other hand, despite emergency measures taken under the 23
March 1984 Federal Decree, there was no reduction in cases
pending; in fact, the number of settled cases did not quite
keep pace with the number of new cases, so that slightly
more cases have to be carried forward than in the previous

        The Federal Court thus concludes that the available resources
cannot cope with the work-load.

        This conclusion is further confirmed by subsequent experience.
After the statistics for 1986 were published, the National Assembly
Rapporteur Mr.  Weber-Arbon stated in the National Council during the
debate on the Federal Court's 1986 report on 11 June 1987:

        "Since mid-1984 an additional 15 deputy judges,
appointed until the end of 1988, are on duty at the Federal
Court in Lausanne, besides the 30 established and 15
ordinary deputy judges.  The purpose of this measure, as the
Federal Council wrote in its message of 19 October 1983, was
to enable the Federal Court to reduce its present considerable
arrears, which had built up, to an acceptable level.
Two-and-a-half of these four-and-a-half years of the
appointment have now lapsed.  The question is whether the
objective has so far been achieved.

        The report mentions that for the first time since
1975 more cases have been closed than new cases were filed.
Why?  Because there were less new cases (140), and so there
were 70 cases less to be carried forward to the new year
than in the previous year.  What does this mean?  15
ordinary and 15 interim judges, as the report would have it,
took charge of 500 cases.  This deployment of forces,
however, only had the effect of preventing the mountain of
cases pending from rising even higher.  A reduction was not
achieved.  In other words, the objective set three years ago
has not been attained.

        We might ask whether the revision of the Federal
Judiciary Act, which is pending before the Federal
Parliament, will bring about a solution to the problem.
Here, I have great doubts.  I am still of the opinion that
the backlog of cases pending can be reduced only by
increasing the number of permanent judges."

        This urgently required increase in the number of Federal
judges, which Mr.  Weber-Arbon with his intimate knowledge of the
Federal Court sees as the only effective solution, has, however,
hitherto been opposed by Parliament.  At the session of the National
Assembly of 17 March 1987 an application from Mr.  Bäumlin aimed at
increasing the maximum number of permanent judges from 30 to 36 was
rejected.  The Parliamentary Committee of the Council of State
preparing the revision of the Federal Judiciary Act has also declined
a proposed increase in this figure and there can be no reasonable
doubt that the Plenary Council of State Assembly will also follow the
line taken by its Committee.  Parliament is thus infringing the
elementary legal maxim formulated by the Swiss lawyer Emer de Vattel in
1775 according to which a State must take equitable steps to ensure
that justice is done to all men as securely (la plus sûre), promptly
and inexpensively as possible.

III.    Admissibility and merits of the present application

        The applicants point out that the proceedings at issue fall
under the guarantees of Article 6 para. 1 of the Convention since they
raise questions relating to civil rights and obligations.

        National law, however, does not authorise a person affected by
such matters, coming under the Federation's right to expropriate, to
file an appeal with an ordinary civil court (cf.  ATF 107 Ib 389, with
many references).  The only legal remedies are those laid down in
the Expropriation Act.  This same Act also provides that only the
person entitled to the right to expropriate may initiate expropriation
proceedings.  The person affected by a de facto expropriation is thus
excluded from initiating proceedings himself.  He must first formally
prevail upon the person entitled to the right to expropriate to
instigate expropriation proceedings (cf.  ATF 91 II 483, 92 I 179, 110
Ib 368).  As a general rule the latter is unwilling to do so since the
Act requires him to bear any costs unless he can demonstrate that
there are adequate grounds for sharing costs, something which is
seldom possible.  The dispossessed person is therefore left to
actually fight his way to the judge dealing with the expropriation.

        Finally, it must also be considered that the proceedings at
issue solely concern this phase of "forcing a way through to court";
in other words, they are proceedings conducted only at the outset of
the actual proceedings.

a.      The period under consideration

        The applicant's assertion that the proceedings before the
Federal Court lasted "almost two years" is corroborated by the
Government's statement that the proceedings lasted "one year, eleven
months and nineteen days", i.e. two years minus eleven days.

b.      Complexity of the case

        The Government submit that the case was legally complex
in that the applicants argued before the Federal Court that the
Federal Council, rather than the Federal Military Department, was the
authority competent to instigate expropriation proceedings.  The
Government acknowledge that the Federal Court already looked into this
question in the case of Besmer and others on 3 June 1983 (BGE 109 Ib
130), i.e. a full three years before the decision in the present case.
It is not claimed that the Federal Court had given scant thought to
the opinion it formulated at that time, even if its statements in
decision BGE 109 Ib 130 can only be qualified as obiter dicta.

        Hence, the applicants assume that intensive thought has been
given to these matters a long time before the administrative court
appeal at issue was filed.  Therefore, when the Federal Court again
carefully examined its position, as requested by the applicants, it
could proceed from work already done, and it was left simply to
reconsider the issues raised by the applicants.

        Nor is this fact altered by the 240-page administrative
court appeal, filed in other proceedings before the Federal Court.
The declarations contained in the administrative court appeal of the
present applicants on the problem of the competence of the Federal
Military Department to initiate expropriation proceedings covered
pages 17 to 31, i.e. 15 pages.

        At the time when those other proceedings in the case of Adolf
Besmer and others were initiated on 8 July 1985, the present case had
already been pending before the Federal Court since 29 June 1984, i.e.
for over a year.  The observations of the Federal Military Department
on the administrative court appeal were submitted to the Federal Court
very shortly afterwards (12 September 1984), so that the investigatory
proceedings were concluded and the case was ready for decision.  And
yet the Federal Court did not serve a decision thereupon until after
the present application had been filed in Strasbourg and the
applicants had sent a copy of their application to the Federal Office
of Justice in Bern.

        Upon closer examination, it transpires that the points of law
brought up by the applicants were by no means so complicated as to
justify such a long delay in answering them.  In fact, the Federal
Court's 81-page decision in the case of Besmer and others (application
of 8 July 1985) was served on 25 July 1986.  This shows that the same
chamber and the same interim judges of the Federal Court are capable
of deciding far more complex questions much more quickly than has been
the case in the proceedings at issue.

c.      Conduct of the applicants

        The applicants reject the Government's allegation that they
are behaving inconsistently.  Any applicant who disputes a previous
obiter dictum from the Federal Court in a reasoned, critical manner
using carefully considered legal arguments and requiring the Court
carefully to examine the matter, in no way forfeits his entitlement to
a decision within a reasonable time.  He should not have to wait
almost two years for a decision from the Court in a matter which, as
stated above, relates solely to the conduct of the proceedings.  He is
entitled to demand that the Federal Court give some priority to the
preparation of such a decision, since he must after all reckon with a
further considerable passage of time during the actual expropriation

        The Government nonetheless acknowledge that the total length
of proceedings, lasting from the request that the Federal Military
Department file expropriation proceedings, to the Federal Court's
decision, extended to the lengthy period of 27 months.

IV.     Conclusions

        The applicants conclude that their application is well-founded
and they request the Commission to declare it admissible.


        The applicants complain of the length of the proceedings
concerning their administrative court appeal before the Federal Court.
They rely on Article 6 para. 1 (Art. 6-1), first sentence, of the
Convention which states:

        "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

        The Commission notes at the outset that the proceedings at
issue constituted a procedural step which the applicants were obliged
to undertake if they sought compensation for noise disturbance from
the Federal Military Department.  The Commission considers therefore
that the proceedings determined the applicants' civil rights and
obligations within the meaning of Article 6 para. 1 (Art. 6-1) and
therefore fall to be considered under this provision.  The Commission
also notes that this is not in dispute between the parties.

        As regards the justification of the period at issue the
applicants submit that the proceedings had only procedural implications
and that the issues to be decided by the Federal Court were neither
new nor complex since they had been dealt with by that Court in
previous proceedings (AT 109 Ib 134, 110 Ib 368).

        In reply the Government have described in detail the measures
which the Swiss Parliament has undertaken in order to expedite the
proceedings before the Federal Court.  In respect of the circumstances
of the present case the Government submit that the length of the
proceedings was justified since the case raised a complex legal
issue.  In particular the applicants had called in question in their
administrative court appeal whether there existed an adequate legal
basis for expropriation by the Federal Military Department.

        The Commission considers that the applicants' complaint
concerning the length of the civil proceedings before the Federal
Court raises difficult questions of fact and law which are of such
complexity that its determination should depend on an examination of
the merits.  The application is therefore not manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and must be declared admissible, no other grounds for
declaring it inadmissible having been established.

        For these reasons, the Commission


Secretary to the Commission               President of the Commission

     (H. C. KRÜGER)                            (C. A. NØRGAARD)