Access to the mountains

2. Common use as a form of use

From the point of view of public law, "entering the mountains" basically represents the use of a public thing. The person practicing mountain sports can use these things if they are in the common use. The common use of public things is - subject to the natural condition such as lakes or rivers - justified by a corresponding dedication and power of disposal (cf. BGE94 I 569E.2a; see also UBI149 III 49E.3.2.1; Gfeller , Rz. 47). The dedication with which a thing is declared public and opened to the general public for use (cf. BGE138 I 274E. 2.3.2), takes place in different ways. It can derive from the law (cf. Art. 14 para. 1 WaG; Article 699 paragraph 1 ZGB), from a (general) decree or from a legal spatial planning measure (e.g. winter sports zone or ski sports zone) (cf. Häfelin/Müller/Uhlmann , margin no. 2229; Karlen , p. 357; Tschannen/Müller/Kern , margin no. 1334; for the winter sports zone, see also the judgment1C_640/2015dated September 20, 2016; on the ski sport zone see also Greiner , p. 25 ff.). A tacit dedication is also considered permissible, especially if an item (e.g. property with a hiking trail) "has been in public use for a long time" (BGE94 I 569E. 2a). In order for the state to be able to make such a dedication, it must be able to dispose of the thing. The state acquires the power of disposal through the acquisition of real or obligatory rights or through official channels through public-law restrictions on ownership or expropriation (cf. Häfelin/Müller/Uhlmann , margin no. 2230; Karlen , p. 356 f.; on the distinction from public-law Restrictions on ownership and formal expropriation see Greiner , p. 200 ff.). A power of disposal by operation of law can also be considered, as is the case in Art. 664 para. 1and paragraph 3ZGBis the case for ownerless things (e.g. culturally incapable land).

As long as people engaged in mountain sports use the public property as intended and in accordance with the common good, public use is free – namely without the need for a permit and free of charge (so-called simple public use; cf. judgment1C_463/2020dated March 3, 2022 E. 4.3; Tschannen/Müller/Kern , margin no. 1380 ff.; on the (construction) permits for ski slopes, see also Bütler , Erschluss, p. 420 ff.; Greiner, p. 54 ff.). In principle, the individual practice of mountain sports, such as hiking or touring skiing, can be considered as intended and socially acceptable, as is the case, for example, with swimming in public waters. Likewise, the practice of base jumping or paragliding as well as heli-skiing is still considered to be in accordance with the regulations and generally acceptable, so that in Switzerland there is no obligation to obtain a permit under public property law (cf.Interpellation Kiener Nellen; on the obligations under aviation law and insurance law, see Felber/Figini , margin no. 32 et seq. and para. 41 f.; on the requirements for heliskiing [such as the mountain landing sites] see Koch , para. 40ff.).

C. Special Legal Access Regulations

In addition to the civil and public law principles just explained, other federal laws contain special legal regulations that are relevant to access to the mountains. This includes, for example, the requirement of Art. 14 Para. 1 WaG, according to which the cantons must ensure that the forest is accessible to the general public. This norm ensures that the forest can fulfill its protective, useful and welfare functions (cf. also Art. 77 Para. 1 B.V), and is the public law counterpart to the civil law regulation in Art. 699 para. 1 ZGB(cf. SAEFL, p. 17; BSK BV- Hoffmann/Griffel , Art. 77 N 17). Furthermore, the Confederation lays down the principles for foot, hiking and cycle path networks (cf. Art. 88 Para. 1 B.V). Based on this competence, it obliges the cantons in Article 6 paragraph 1 letters a–c FWG, to ensure that footpaths and hiking trails are laid out, maintained and marked, that these paths can be walked freely and as safely as possible, and that public access is legally secured. The cantons must also record existing and planned footpath and hiking trail networks in plans (cf. Art. 4 Para. 1 lit. a FWG). If a hiking trail is included in these plans, the cantons, in accordance with Article 6 Paragraph 1 Letter c FWGto ensure that it is and remains publicly accessible (cf. CR Cst.- Beyeler/Diebold , Art. 88 N 45; cf. also Vuille , para. 5).

III. Limiting access to the mountains

Based on what has been said, it is clear that the principle of largely unrestricted access to the mountains applies in Switzerland. The exceptions to this principle are discussed below. First of all, the restriction of civil law access rights and then the public law restrictions on access to the mountains must be considered.

A. Civil law restriction of the right of access according to Art. 699 Para. 1 ZGB

The right of access of the person practicing mountaineering according to Art. 699 Para. 1 ZGBcan be restricted by means of civil law measures. However, such a restriction requires in any case a particularly protected interest of the person concerned who owns the forest or pasture land, for example because a young forest or a tree nursery is to be protected (cf. BSK ZGB II-Rey/Strebel, Art. 699 N 23). For protection, private action is conceivable, on the one hand, by enclosing the forest or pasture land, and on the other hand, an official ban on access, especially if enclosing an enclosure is not an option. The cantonal legislature regulates the responsibility for issuing access bans: Due to the “double character of Art. 699 ZGB» Cantonal law may stipulate that a cantonal administrative authority orders the ban on entry or that the locally competent civil court imposes a judicial ban within the meaning of Art. 258the Swiss Code of Civil Procedure of December 19, 2008 (ZPO;SR262) pronounces (BGE106 Ia 84E.3a; see also UBI141 III 195E 2). An example of an (inadmissible) access ban by an executive authority, which is important for mountaineering, dates back to 1936, when the government council of the canton of Bern, following various accidents on the north face of the Eiger, restricted their inspection by restricting the right of access under Art. 699 Paragraph 1 ZGBforbidden. The reason for the inadmissibility of the official access ban lies in the fact that the north face of the Eiger is to be regarded as culturally incapable land, so that access is not based on Art. 699 ZGBmust call. Conversely, an official restriction of the right of access within the meaning of Art. 699 Para. 1 ZGBnot possible with a view to the culture-incapable country, since there is a lack of cultures from the outset lacking the required special interest worthy of protection (cf. Dannegger , p. 16 f.). In addition to the civil-law measures, the civil-law right of access is also restricted by public-law access bans (see paragraph 20 et seq. below). The public-law restriction of the civil-law right of access is particularly important in constellations in which the landowners do not defend themselves against access that they should not actually tolerate due to lack of knowledge or interest (cf. Seiler, p . 87 ).

B. Public law restrictions on access to the mountains

While the civil law restrictions on the right of access of Art. 699 para. 1 ZGBrefer to the protection of real estate and “can only affect vegetation planted by people” ( Seiler , p. 81), the public law restrictions aim, for example, at the protection of wild plants or wild animals as well as at regulating the use of public property.

1. Cantonal access bans in general

Based on their original legislative competence, the cantons can issue public-law access bans. However, such bans - like all state action - must be in the public interest and proportionate (cf. Art. 5 Para. 2 B.V). Due to the priority of federal law (cf. Art. 49 para. 1 B.V) the cantonal access bans may also override the civil access right of Art. 699 ZGB"not deprive of its substance" (BGE122 I 70E.5a and E.5b; see BGE109 Ia 76E. 3b with reference to BGE58 I 173and UBI43 I 282). Such access bans under cantonal law come into question, in particular for the protection of nature or for other police reasons. In addition to the substance of Art. 699 ZGB(recreational function), which the cantons must maintain, the access bans must not conflict with federal public law, since the expansive power of cantonal law only applies to federal civil law and not to federal public law (cf. Seiler , p 89-99; see also Article 6 ZGB; BSK ZGB I- Lardelli/Vetter , Art. 6 N 10 ff.). The aforementioned example of the ban on climbing the north face of the Eiger is – in contrast to the ban on access under civil law – conceivable in the form of a ban on access under public law in the canton. However, a general ban on access should in any case comply with the principle of proportionality of Art. 5 para. 2 B.Vare in conflict (see also Dannegger , p. 17). It would also be disproportionate, for example, to prohibit hang gliders or paragliders from taking off or landing in mountain or alpine regions for an unlimited time and location (cf. BGE122 I 70E. 5).

2. Restrictive provisions of public federal law

Access to the mountains and their limitations are regulated in detail by cantonal law. Because the cantons are responsible for the implementation of spatial planning (cf. Art. 75 para. 1 B.V; CR Cst.- Haag , Art. 75 N 2) and in principle also for the guarantee of nature conservation (cf. 78 para. 1B.V; CR Cst.- Haag, Art . 78 N 20 f.; but cf. Art. 78 paras. 2-5 B.V). In doing so, however, they have to take into account the spatial planning principles of federal law and the federal legal requirements for environmental and water protection, nature and homeland protection and forest conservation (cf. also Koch , para. 30; Stiffler , Skirecht , N 1471 ff.). As a result, there is a cantonal legal network of locally - and sometimes temporally - varying protection zones.

For example, Art. 14 (2) lit WaGthat the cantons have to restrict access to certain forest areas where this is necessary for the preservation of the forest or other public interests, such as the protection of plants and wild animals. For this purpose, the designation of forest reserves, wild animal rest zones or nature protection areas in the forest can be considered (cf. SAEFL, p. 18; cf. also Art. 21 Para. 3 lit. a-c of the Forest Act of the Canton of Bern of 5 May 1997 [BSG921.11], according to which the protection of the forest can be accomplished through the designation of wildlife sanctuaries, the designation of forest reserves and nature reserves, and the erection of signals, fences and other barriers). A similar requirement under federal law can be found in Art. 7 Para. 4of the federal law of 20 June 1986 on hunting and the protection of wild mammals and birds (hunting law,JSG;SR922.0). According to this provision, the cantons must ensure adequate protection of wild mammals and birds from disturbance, for which purpose they regularly create wild animal rest zones (cf. eg Art. 27 of the Hunting Act of the Canton of Graubünden of June 4, 1989 [BR740,000], according to which the game is to be protected from being disturbed and the municipalities can, under certain circumstances, restrict the right of access to the game sanctuary in terms of location and time). The cantonal forest protection zones and wild animal rest zones are of particular importance, since they regularly restrict access to the mountains, but, as will be shown, not significantly in scope (cf. Koch , para. 31 f. and para. 33 ff .; Stiffler , Snow Sports Law, N 527; Stiffler, Ski Law, N 1560).

In its statement of March 6, 2015, the Federal CouncilInterpellation Darbellayof December 12, 2014 states that around 10 percent of «the Swiss Alps and foothills can be used to a limited extent in the winter months (national park core zone, federal hunting ban areas, legally designated cantonal wild [animal] quiet zones). In addition, around 600 ski touring and snowshoe routes have been set aside in this area with priority for fauna. Restrictions for summer tourism uses such as climbing or mountain biking only apply in the national park, in the mostly small nature reserves and a small part of the wild animal rest zones »(Interpellation Darbellay; on the Swiss National Park, see margin no. 26).

3. Restriction of common use by a usage regulation

At this point it should be recalled that the land used for mountaineering, regardless of whether it is also privately owned, should in principle represent a public thing in common use (see paragraph 13 et seq. above .). The common use of a public thing can be restricted - in addition to the above-mentioned bans on access - by a usage regulation. In contrast to civil law, the usage regulations do not aim to protect property or possessions, but "to regulate the use of a public thing" (judgment6B_116/2011dated July 18, 2001 at 3.3). A usage regulation requires a legal basis. The cantons regularly create this basis by designating a usage zone based on cantonal spatial planning and building law and issuing a corresponding zoning ordinance (see also para. 15 above). The winter sports zones in general and the downhill skiing zones or cross-country ski run zones in particular are important for mountain sports in winter. These usage zones and the associated zone regulations determine how the public property is to be used as intended (e.g. skiing or cross-country skiing). Such zones for skiing (downhill skiing zone) or cross-country skiing (cross-country skiing zone) create a corresponding right of access as soon as there is snow,Stiffler , Snow Sports Law, N 534 ff.; Stiffler, Skirecht, N 1449 ff.; for hiking on ski slopes, see also Elsener/Wälchli , Rz. 104ff.). However, a restriction of public use can also be considered if there is a threat of natural hazards and the community has a guarantor position for the safe use of public property (cf. Bütler, Wanderwege, p. 112 and p. 115). Article 6(1)(b) also states that hiking trails can be closed, for example due to the risk of falling rocks FWG(cf. also Vuille , para. 77 ff.).