Facts
The complainant [A.] applied on 10 November 2022, on behalf of the group "Strike WEF Kollektiv", for permission to hold a two-day hike titled "Winter Hike for Climate Justice". The planned route was to lead on 14 January 2023 along the cantonal road from Küblis to Klosters Platz and on 15 January 2023 from there via hiking trails to Davos Platz, where a joint public demonstration was to be held with the JUSO Graubünden. The expected number of participants was stated as a maximum of 300.
On 16 December 2022, [A.] was informed that the route along the cantonal road could not be approved. Instead, an alternative route via side roads and hiking trails was proposed. With decisions dated 9, 10 and 13 January 2023, the municipalities of Küblis, Klosters and Davos granted permission for the winter hike subject to conditions. At the same time, the Cantonal Road Authority of the Canton of Graubünden refused to grant permission for the use of the cantonal road between Küblis and Klosters with a decision dated 10 January 2023. The approved route in this section instead led via side roads and hiking trails.
[A.] appealed the decision of the Cantonal Road Authority to the Department of Infrastructure, Energy and Mobility of the Canton of Graubünden, which dismissed the appeal with a decision dated 18 August 2023. The complainant challenged the municipal decisions with separate appeals to the Administrative Court of the Canton of Graubünden. He also appealed the departmental decision of 18 August 2023 to the Administrative Court. The Administrative Court declined to join the proceedings and issued four separate judgments on 21 November 2023, dismissing all appeals insofar as it ruled on them.
In a single submission dated 15 January 2024, [A.] filed an appeal in public law matters with the Federal Supreme Court against the four judgments of the Administrative Court. In the matter, he requested that it be determined that his freedom of expression and assembly and his right to an effective remedy had been violated. The Federal Supreme Court allowed the appeal.
Considerations
The Federal Supreme Court first examined the complainant’s standing to appeal pursuant to Art. 89 para. 1 FSCA. It affirmed a legitimate interest in the determination of legal violations, even though the event date had already passed, since claims protected by the ECHR were at issue. Moreover, it was necessary to rule on the appeal in order to determine a legal delay and uphold the right to an effective remedy.
In the matter, the complainant alleged a violation of his freedom of expression and assembly pursuant to Art. 16 Cst., Art. 22 Cst. and Art. 10 and 11 ECHR. The Federal Supreme Court confirmed that the refusal to permit the use of the cantonal road constituted an interference with these fundamental rights, as the impact of the demonstration was significantly impaired by the shift to more remote routes. While the lower court had considered a certain restriction of the impact to be acceptable, the Federal Supreme Court held that the authorities had not sufficiently justified the interference with fundamental rights.
The legal basis for the permit requirement was found in the cantonal provisions (Art. 12 StrG and Art. 3a PolG), which, although they do not contain detailed criteria for the granting of permits, nonetheless provide a sufficient formal statutory basis. The requirements for legal precision were not to be set higher in view of the complexity of the facts and the need for a case-by-case balancing of interests. However, the authorities had not carried out the balancing of interests correctly, in particular as they had not sufficiently examined the possibility of permitting the use of the cantonal road in sections.
The Federal Supreme Court emphasised that the authorities have a wide margin of discretion in granting permits for demonstrations, but must ensure the proportionality of the measures. The complete…