BALMER-SCHAFROTH AND NINE OTHERS v. SWITZERLAND



                      AS TO THE ADMISSIBILITY OF

                      Application No. 22110/93

                      by Ursula BALMER-SCHAFROTH and nine others

                      against Switzerland

      The European Commission of Human Rights (Second Chamber) sitting

in private on 18 October 1995, the following members being present:

           MM.   H. DANELIUS, President

                 S. TRECHSEL

           Mrs.  G.H. THUNE

           MM.   G. JÖRUNDSSON

                 J.-C. SOYER

                 H.G. SCHERMERS

                 F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

           Ms.   M.-T. SCHOEPFER, Secretary to the Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 14 June 1993 by

Ursula Balmer-Schafroth and nine others against Switzerland and

registered on 22 June 1993 under file No. 22110/93;

      Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations submitted by the respondent Government on

      22 July 1994 and the observations in reply submitted by the

      applicants on 14 October 1994;

      Having deliberated;

      Decides as follows:

THE FACTS

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

summarised as follows.

      The application has been introduced by ten applicants all of whom

are Swiss citizens.  Their particulars are set out in an Appendix

attached hereto.  Before the Commission the applicants are represented

by Mr. R. Weibel, a lawyer practising in Bern.

      The applicants reside in the vicinity of the nuclear power plant

at Mühleberg in the Canton of Bern in Switzerland.  The communities in

which the applicants reside, i.e. Wilteroltigen, Detligen and Gümmenen,

are part of a first degree emergency area (Alarmzone).  The applicants

are partly proprietors, partly tenants of their homes.

A.    Particular circumstances of the case

                                  I.

      The nuclear power plant has been operated by a private company,

the Bern Power Plant Ltd. (Bernische Kraftwerke AG), since 1971 when

it was first put into operation.  The Swiss Federal Council

(Bundesrat), i.e. the Swiss Federal Government, has regularly permitted

the company to continue the operation of the power plant.  While

initially the permits were valid for a limited period of time of six

months, subsequently they were extended up to a period of seven years

in 1985.

      On 9 November 1990 the company filed a request with the Federal

Council for the renewal for an unlimited period of time of the

operation permit, and for an increase in the power plant's permitted

output of ten per cent.  The application was published by the Federal

Ministry for Transport and Energy (Eidgenössisches Verkehrs- und

Energiedepartement) in the Federal Gazette (Bundesblatt) on 4 December

1990.  The Ministry stated inter alia that persons complying with the

conditions inter alia of Section 48 of the Federal Administrative

Procedure Act (Verwaltungsverfahrensgesetz; see below Relevant domestic

law and practice) could file an objection (Einsprache).

      By 4 March 1991 over 28,000 written objections, among them the

objections of the present applicants, were filed with the Federal

Energy Office (Bundesamt für Energiewirtschaft) against the request.

As many as 21,000 objections were submitted by persons residing in

Germany and Austria.  Over 99 % of the objections were photocopied.

      In their objections the complainants requested the closure of the

nuclear power plant.  They claimed inter alia that it failed to satisfy

technical and safety requirements and endangered the natural

environment of the surrounding area.  They requested the taking of

additional evidence and the imposition of provisional measures.  The

complainants also disputed the impartiality of the Federal Council and

other administrative bodies involved in the proceedings.  In support

of their objections the complainants submitted expert opinions prepared

by the Ecological Institute (Ökoinstitut) at Darmstadt in Germany and

by the specialist Professor J. B. of the Munich Solmer Institute.

      In respect of the jurisdiction of the Federal Council the

complainants further noted that according to the applicable law the

request for the operation permit had to be decided in first and last

instance by the Federal Council.  The statement continued:

(Translation)

      "Insofar as the administrative law appeal against the contested

      operation permit according to Section 99 (e) of the Federal

      Judiciary Act should be inadmissible, the permit, which cannot

      be examined by a court on the domestic level, could only be

      contested by means of a human rights application according to

      Article 6 para. 1 of the Convention for the Protection of Human

      Rights and Fundamental Freedoms: the permit relates to the

      applicants' civil rights without having been examined by an

      independent and impartial court established by law."

(German)

      "Sofern die Verwaltungsgerichtsbeschwerde gegen die erteilte

      Betriebsbewilligung gemäss OG Artikel 99 lit. e unzulässig sein

      sollte, wäre die national unjustiziable Bewilligung nur noch mit

      der Menschenrechtsbeschwerde gemäss Art. 6 Ziff. 1 der Konvention

      zum Schutze der Menschenrechte und Grundfreiheiten anfechtbar:

      die Bewilligung betrifft die zivilrechtlichen Ansprüche der

      Einsprecherinnen, ohne von einem unabhängigen und unparteiischen,

      auf Gesetz beruhenden Gericht geprüft worden zu sein."

                                  II.

      On 3 September 1991 and 23 June 1992 the Federal Ministry for

Transport and Energy rejected the requests for interim measures and for

the taking of additional evidence.

      On 28 October 1992 the Federal Council dismissed a complaint that

Federal Councillor (Bundesrat) Ogi, the Head of the Federal Ministry

for Energy and Transportation, was biased.

      On 14 December 1992 the Federal Council dismissed all objections

as being unfounded and granted the company a limited operation permit

expiring on 31 December 2002.  Furthermore, it permitted the company

to increase its output by ten per cent.  This permit was linked to

various safeguards concerning, for instance, threshold levels for

radioactive substances and technical improvements of the plant.  The

company was also requested to submit periodically updated safety

reports and to develop emergency strategies until mid-1993.

      In its decision the Federal Council first examined whether all

complainants were entitled to file objections.  It considered that

according to its constant practice persons living in Germany and

Austria did not enjoy this entitlement in view of the distance between

the nuclear power plant and the respective borders.  The Council

nevertheless considered that it need not examine the entitlement of the

remaining complainants, as it sufficed to note that certain

complainants lived in the first degree emergency area around the

nuclear power plant and were therefore entitled to participate in the

objection proceedings.

      For its decision on the merits the Federal Council relied on

expert opinions prepared by the Principal Office for the Safety of

Nuclear Facilities (Hauptabteilung für die Sicherheit von Kernanlagen)

and the Section for Nuclear Technology and Safety (Sektion

Nukleartechnologie und Sicherheit) of the Federal Office for Energy.

The Federal Council also took into account statements of the Federal

Commission for the Safety of Nuclear Power Plants (Eidgenössische

Kommission für die Sicherheit von Kernanlagen) and of the Canton of

Bern.  Finally, it considered a study submitted by the company on

possible effects of the power plant on the river Aare which was

integrated into its cooling system.

      In its decision the Federal Council considered that nuclear power

plants built in the early 1970's generally failed to meet contemporary

technical standards which had been continuously raised over the past

years.  The Federal Council therefore regarded it as its task to

ascertain that improvements regarding security measures were

undertaken.  It concluded that on the basis of the evidence submitted

no relevant deficiencies could be established.

      In respect of the complainants' objection alleging a breach of

their right to life and physical well-being the Federal Council found

that the Swiss Federal Constitution only protected individuals from

deliberate interferences.  There was no such interference as long as

all necessary technical precautions were being respected.  Insofar as

it was known that two employees suffered from cancer, this could not

be attributed to radiation in the power plant.  The Federal Council

also dismissed complaints about environmental interferences.  In

respect of the river Aare the Federal Council considered that minor

environmental effects would have to be balanced against the public

interest in a supply of electric energy.

B.    Relevant domestic law and practice

                                  I.

      Section 4 para. 1 of the Federal Nuclear Act (Eidgenössisches

Atomgesetz) of 23 December 1959 provides that construction and

operation of nuclear power plants and changes thereto require an

operation permit.  According to Section 5 para. 4 a permit shall be

refused or subjected to conditions if human life or other important

assets are at risk.  Article 6 states that the Federal Council is the

only authority competent to grant such permits.  No appeal is possible

against the decision of the Federal Council.

                                  II.

      According to Section 96 the Federal Judiciary Act (Organisations-

gesetz) an administrative court appeal (Verwaltungsgerichtsbeschwerde)

can be filed against decisions of Federal authorities relying on

Federal law.  However, Section 99 (e) of the Act excludes such an

appeal if it is directed against permits for the operation of

facilities or installations of a technical nature.

                                 III.

      The Federal Administrative Procedure Act (Verwaltungsverfahrens-

gesetz) concerns administrative proceedings inter alia before the

Federal administration.  Sections 44 et seq. concern objection

proceedings (Beschwerdeverfahren).  According to Section 44 an

administrative decision (Verfügung) may be contested by an objection

(Beschwerde).  Section 46 excludes an objection inter alia if an

administrative law appeal can be filed with the Federal Court (Bundes-

gericht).  Section 48 provides that whoever is affected by the

contested decision and has an interest worthy of protection in the

annulment or amendment thereof is entitled to file an objection.

IV.

      Section 679 of the Swiss Civil Code (Zivilgesetzbuch) states as

regards relations between private neighbours:

      "Whoever is damaged or threatened with damage by a proprietor who

      abuses his property right can file an action in order to have the

      damage set aside or to obtain protection against threatening

      damage and to obtain compensation."

      "Wird jemand dadurch, dass ein Grundeigentümer sein

      Eigentumsrecht überschreitet, geschädigt oder mit Schaden

      bedroht, so kann er auf Beseitigung der Schädigung oder auf

      Schutz gegen drohenden Schaden und auf Schadenersatz klagen."

      Section 684 para. 2 of the Swiss Civil Code prohibits inter alia

interferences by means of smells, noise or vibrations which are

damaging and unjustified according to the situation and nature of the

real properties.

                                  V.

      The Federal Act on Expropriation (Enteignungsgesetz) envisages

in Section 1 the right to expropriation in the interest of the

Confederation or in favour of another public interest.  Section 5

para. 1 states:

      "The object of the right to expropriation can be ... neighbours'

      rights derived from the real property as well as the personal

      rights of tenants ... of the properties affected by the

      expropriation."

      "Gegenstand des Enteignungsrechts können ... die aus dem

      Grundeigentum hervorgehenden  Nachbarrechte, ferner die

      persönlichen Rechte von Mietern ... des von der Enteignung

      betroffenen Grundstückes sein."

      The Federal Court has expressed itself in respect of this

provision as follows:

      "Les actions fondées sur (l') art. 679 ... du Code Civil ... font

      partie des droits susceptibles d'être expropriés au sens de

      l'art. 5 ...  Si les immissions, ou autres effets prétendus

      excessifs, proviennent de la construction, conforme au droit

      applicable, d'un ouvrage d'intérêt public pour lequel il est

      recouru à l'expropriation, ou sont la conséquence de

      l'utilisation d'un tel ouvrage conforme à sa destination, les

      actions du droit privé tendant à la cessation du trouble ou à la

      réparation du dommage ne peuvent être exercées.  La prétention

      en versement d'une indemnité pour expropriation se substitue

      alors aux actions du droit privé et doit être soumise au juge de

      l'expropriation, lequel est compétent pour se prononcer non

      seulement sur l'indemnité mais également sur l'existence du droit

      ...  Le refus de l'expropriant de faire ouvrir une procédure peut

      être attaqué, en dernière instance, par la voie du recours de

      droit administratif au Tribunal fédéral." (cf. Arrêts du Tribunal

      Fédéral Suisse [ATF] 116 Ib 253)

      The expropriation may concern all or only part of the property

rights:

      "en vertu de l'article 5 ... les droits résultant des

      dispositions sur la propriété foncière en matière de rapports de

      voisinage peuvent faire l'objet de l'expropriation et être

      supprimés ou restreints temporairement ou définitivement,

      moyennant le respect du principe de la proportionnalité ..." (cf.

      ATF 119 Ib 341)

      Section 5 of the Federal Expropriation Act has, for instance,

been invoked by neighbours to busy national roads who feared hazardous

exhaust substances (cf. ATF 118 Ib 205).  According to the Federal

Court's case-law, compensation will be granted if the nuisance was not

foreseeable; if it specially concerns the proprietor; and if it results

in serious damage (cf. loc. cit. 205). The foreseeability will depend

inter alia on whether the neighbour, at the time when he obtained the

property, could reasonably be aware of the forthcoming nuisance (cf.

ATF 111 Ib 234).

COMPLAINTS

1.    The applicants complain under Article 6 para. 1 of the Convention

about the lack of access to court in respect of the decision of the

Swiss Federal Council of 14 December 1992 to grant the operation permit

of the Mühleberg nuclear power plant.

      The applicants request a court which may completely and freely

examine their right to bodily integrity and the protection of their

property, as affected by the operation permit, in respect of the facts

and the applicable law.

      The applicants claim that the decision to grant an operation

permit to the nuclear power plant affected their civil rights and

obligations within the meaning of Article 6.

      The applicants also complain that the Federal Council disregarded

basic principles of fairness and that the Federal Council and various

witnesses were not impartial.

2.    Subsidiarily the applicants complain under Article 13 of the

Convention that no effective remedy was available to them under

domestic law enabling them to complain about a breach of their right

to life under Article 2 of the Convention and about a breach of their

right to respect for bodily integrity guaranteed in Article 8 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 14 June 1993 and registered on

22 June 1993.

      On 11 May 1994 the Commission decided to communicate the

application to the respondent Government.

      The Government's written observations were submitted on 22 July

1994.  The applicants replied on 14 October 1994.

THE LAW

1.    The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention of the lack of access to court.  They also complain about

the unfairness of the proceedings before the Federal Council.

Subsidiarily the applicants complain under Article 13 (Art. 13) of the

Convention that no effective remedy was available to them under

domestic law enabling them to complain about a breach of their right

to life under Article 2 (Art. 2) of the Convention and about a breach

of their right to respect for bodily integrity guaranteed in Article

8 (Art. 8) of the Convention.

      Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

      "In the determination of his civil rights and obligations ...

      everyone is entitled to a fair ... hearing ... by (a) tribunal

      ..."

      Article 13 (Art. 13) of the Convention states:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy before a

      national authority notwithstanding that the violation has been

      committed by persons acting in an official capacity."

2.    The Government contest the applicability of Article 6 para. 1

(Art. 6-1) of the Convention in the present case.  To begin with, the

applicants could not claim a "right" within the meaning of this

provision, as the operation permit did not concern the applicants.

Moreover, there was no "contestation" of a genuine and serious nature

within the meaning of this provision as the matters of law and fact at

issue were not susceptible to judicial assessment.  Reference is made

to the Van Marle judgment (see Eur. Court H.R., judgment of 26 June

1986, Series A no. 101, p. 12, para. 36).  Here, the Government point

out the highly technical nature of the case.  It is also maintained

that the result of the proceedings was not directly decisive for such

a right, as required by the case-law of the Convention organs (see Eur.

Court H.R., Pudas judgment of 27 October 1987, Series A no. 125-A, p.

14, para. 31).  In particular, there was no direct risk to the present

applicants' health.

      The Government further contend that the rights invoked by the

applicant were not "civil" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.  In the present case, insofar as the

applicants refer to health hazards, they have not invoked their

physical integrity as protected by private law, in particular the Swiss

Code of Obligations.  The Government refer here to the Commission's

Report inter alia in the Koendjbiharie case (see Comm. Report

12.10.1989, para. 78, Eur. Court H.R., Series A no. 185-B, p. 52).

      In the applicants' submissions, the decision to grant an

operation permit to the nuclear power plant affected their civil rights

and obligations within the meaning of this provision.  They maintain

that as neighbours they were particularly affected in their civil

rights; indeed, under national law the neighbours to a nuclear power

plant are entitled to file complaints about the operation permits.  In

the applicants' view, their claims before the domestic authorities were

not merely of a technical nature, but typically legal, such as to

amount to a genuine and serious "contestation" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.  For instance, the

applicants raised the issue whether the operation of a nuclear power

plant corresponded to their constitutional rights to life, health and

property, and also complained about the unfairness of the proceedings.

With reference to Article 5 (Art. 5) of the Federal Nuclear Act the

applicants invoke a direct connection between their right to physical

integrity and the operation permit.  Indeed, the fact that the national

legal order grants solely to the neighbours of the nuclear power plant

the right to file an objection demonstrates the rights involved, namely

the right to life and to property.

      The applicants maintain that the rights invoked were "civil"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

It falls to the domestic legal order to protect the property rights of

neighbours.  In the present case the applicants requested nothing else

than the protection by the Federal Council inter alia of their property

rights.  However, if the applicants had undertaken a civil action, or

claimed compensation for expropriation, the court would have regarded

itself bound by the decision of the Federal Council.  For these

reasons, the contested proceedings not only concerned the applicants'

bodily integrity but also indirectly the pecuniary consequences of the

health hazards.

      The Commission must first ascertain whether there has been a

dispute (contestation) over a "right" which can be said, at least on

arguable grounds, to be recognised under domestic law.  The dispute

must be genuine and serious; it may relate not only to the actual

existence of a right but also to its scope and the manner of its

exercise; and finally, the result of the proceedings must be directly

decisive for the right in question (see Eur. Court H.R., Zander

judgment of 25 November 1993, Series A no. 279-B, p. 38 et seq., paras.

22 et seq.).

      The Commission notes that the applicants' claims were based on

Section 5 para. 4 of the Federal Nuclear Act according to which the

Federal Council shall refuse an operation permit inter alia if human

life is at risk.  Section 48 of the Federal Administrative Procedure

Act provides that whoever is affected by the contested decision and has

an interest worthy of protection in the annulment or amendment thereof

is entitled to file an objection against the decision of an

administrative authority, in particular the Federal Council.  In its

decision of 14 December 1992 the Federal Council clearly acknowledged

the right of persons residing in the first degree emergency area in the

vicinity of the nuclear power plant to file objections.  Thus, the

applicants could arguably claim that they were entitled under Swiss law

to protection against the effects of the nuclear power plant (see,

mutatis mutandis, Zander judgment, p. 40, para. 25).

      Moreover, the Federal Council's discretion was not unfettered and

there was serious disagreement between the authorities and the

applicants.  Finally, the outcome of the dispute was directly decisive

for the applicants' entitlement to protection against the effects of

the nuclear power plant (see, mutatis mutandis, Zander judgment, p. 40,

para. 25).  The proceedings before the Federal Council therefore

involved "the determination" of the applicants' "rights" for the

purposes of Article 6 para. 1 (Art. 6-1) of the Convention.

      Next, the Commission must examine whether the applicants' right

was "civil" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention.  The Commission observes that the applicants' claim was

related to the use of their property, either as proprietor or as

tenant.  The right to property is undoubtedly a "civil right" within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Consequently, the entitlement in issue was a "civil right" (see,

mutatis mutandis, Zander judgment, p. 40, para. 27).

      Article 6 para. 1 (Art. 6-1) of the Convention was therefore

applicable in the present case.

3.    Under Article 26 (Art. 26) of the Convention, "the Commission may

only deal with the matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law".

      The Government submit that the applicants have not complied with

this requirement.  On the one hand, they failed to raise this complaint

in the domestic proceedings.  On the other hand, insofar as the

applicants merely relied on health hazards, the Government admit that

an action could not have been raised on the basis of Section 679 of the

Swiss Civil Code or of Section 5 of the Federal Expropriation Act.

However, insofar as they invoke their right to property, they could

have filed an action claiming restrictions to this right and, as a

result, have requested compensation for the diminished value of their

property in view of the nuclear power plant.

      The applicants submit that they are not requesting a first

instance court to decide on the operation permit.  Rather, they are

complaining that they cannot contest the decision which granted the

operation permit.  It would also have served no purpose to raise this

complaint before the Federal Council, which was clearly not a court.

In any event, in their objections of 4 March 1991 the applicants

clearly stated that they did not accept the final jurisdiction of the

Federal Council.  The applicants, who are primarily defending their

bodily integrity, further note that the respondent Government expressly

exclude the possibility of filing certain actions.

      The Commission notes, on the one hand, that in their objections

of 4 March 1991 to the Federal Council the applicants briefly referred

to the lack of access to court.  The Commission need nevertheless not

examine whether or not they sufficiently raised the complaint at issue

since in any event such a complaint would not have been an effective

remedy within the meaning of Article 26 (Art. 26) of the Convention.

Thus, according to Swiss law, the Federal Council is the only authority

competent to decide on the operation permit for a nuclear power plant,

and no appeal lies against the ensuing decision.

      On the other hand, insofar as the issue arises whether or not a

separate action could have been filed before a court, the Commission

considers that this issue falls to be examined together with the well-

foundedness of the application.

      The application cannot therefore be declared inadmissible for

non-exhaustion of domestic remedies within the meaning of Article 26

(Art. 26) of the Convention.

4.    Having examined these complaints the Commission finds that they

raise serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

Moreover, the complaint under Article 13 (Art. 13) of the Convention

is closely linked to that under Article 6 (Art. 6) of the Convention

and should also be examined on the merits.  The application cannot,

therefore, be regarded as being manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no

other ground for declaring it inadmissible has been established.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits of the case.

Secretary to the Second Chamber      President of the Second Chamber

      (M.-T. SCHOEPFER)                      (H. DANELIUS)

                               APPENDIX

                       Application No. 22110/93

        Ursula BALMER-SCHAFROTH and nine others v. Switzerland

                     Particulars of the applicants

1.    Ursula BALMER-SCHAFROTH, residing at Wileroltigen

2.    Ueli BALMER-SCHAFROTH, residing at Wileroltigen

3.    Luise BAUMANN-BÜCHI, residing at Wileroltigen

4.    Ursula PYTHON-HUGENER, residing at Wileroltigen

5.    Gianni PYTHON, residing at Wileroltigen

6.    Madeleine PFANDER, residing at Detligen

7.    Daniel PFANDER, residing at Detligen

8.    Rainer ZUR LINDE, residing at Detligen

9.    Ursula WANNER, residing at Detligen

10.   Vreni REMUND, residing at Gümmenen

 

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