Facts
The Frittenbach-Geissbühl road association was established in 1976 to develop the farms between Ober- and Unterfrittenbach in the Napf region with roads. The overall settlement of the facility was approved by the general meeting of the association on 20 November 1996. Against the approval, the association members X. and Y. filed an objection with the Cantonal Soil Improvement Commission of Bern (BVK) on 18 December 1996. They requested the rejection of the extraordinary secretary of the BVK, lawyer Z., as he was also an employee of the cantonal economic directorate.
The BVK rejected the request for rejection and decided that the minutes would not be entrusted to a person outside the cantonal administration. The Administrative Court of the Canton of Bern did not consider the appeal filed against it. X. and Y. appealed to the Federal Court with a constitutional complaint and alleged a violation of Art. 58 Cst., Art. 6 para. 1 ECHR and Art. 68 para. 2 BE.
Considerations
The Federal Court first examined whether the constitutional complaint against the decision of the BVK was admissible. It came to the conclusion that the complainants were not responsible for any procedural default, as they could not be held responsible for the incorrect legal instruction of the cantonal authorities.
The court found that the BVK was constituted as a judicial body under Bernese law and therefore had to meet the requirements of Art. 58 Cst. The participation of a cantonal official as recorder and secretary of the BVK violated Art. 58 Cst. and Art. 6 para. 1 ECHR, as this could lead to conflicts of loyalty and undermine trust in the judicial independence of the BVK.
The Federal…