EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 22110/93
Ursula BALMER-SCHAFROTH and nine others
against
Switzerland
REPORT OF THE COMMISSION
(adopted on 18 April 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 17-39). . . . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 17-29) . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant domestic law
(paras. 30-39) . . . . . . . . . . . . . . . . . . . . . 5
III. OPINION OF THE COMMISSION
(paras. 40-65). . . . . . . . . . . . . . . . . . . . . . . . 8
A. Complaints declared admissible
(para. 40) . . . . . . . . . . . . . . . . . . . . . . . 8
B. Points at issue
(para. 41) . . . . . . . . . . . . . . . . . . . . . . . 8
C. Article 6 para. 1 of the Convention
(paras. 42-57) . . . . . . . . . . . . . . . . . . . . . 8
CONCLUSION
(para. 58) . . . . . . . . . . . . . . . . . . . . . . .10
D. Article 13 of the Convention
(paras. 59-62) . . . . . . . . . . . . . . . . . . . . .10
CONCLUSION
(para. 63) . . . . . . . . . . . . . . . . . . . . . . .11
E. Recapitulation
(paras. 64-65) . . . . . . . . . . . . . . . . . . . . .11
TABLE OF CONTENTS
Page
DISSENTING OPINION OF MM. H.G. SCHERMERS, B. MARXER, M.A. NOWICKI,
I. CABRAL BARRETO, J. MUCHA AND C. BÎRSAN . . . . . . . . . . . . .12
DISSENTING OPINION OF MR. S. TRECHSEL JOINED BY MM. A.S. GÖZÜBÜYÜK,
B. CONFORTI, D. SVÁBY, P. LORENZEN AND K. HERNDL. . . . . . . . . .14
DISSENTING OPINION OF MR. J.-C. SOYER . . . . . . . . . . . . . . .16
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . .17
I.INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The application has been introduced by ten applicants all of whom
are Swiss citizens. Their particulars are set out in the Appendix
below (see p. 27). Before the Commission the applicants are
represented by Mr R. Weibel, a lawyer practising in Bern.
3. The application is directed against Switzerland. The respondent
Government are represented by Mr. Ph. Boillat, Head of the European Law
and International Affairs Section of the Federal Office of Justice,
Agent.
4. The case concerns the applicants' complaint about the lack of
access to court in respect of the decision of the Swiss Federal Council
to grant the operation permit of the Mühleberg nuclear power plant.
The applicants also complain that no effective remedy was available to
them to complain about a breach of their right to life and to bodily
integrity. The applicants invoke Articles 6 para. 1 and 13 of the
Convention.
B. The proceedings
5. The application was introduced on 14 June 1993 and registered on
22 June 1993.
6. On 11 May 1994 the Commission (Second Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's written observations were submitted on 22 July
1994. The applicants replied on 14 October 1994.
8. On 18 October 1995 the Commission (Second Chamber) declared the
application admissible. On 8 March 1996 the case was referred to the
Plenary Commission.
9. The text of the Commission's decision on admissibility was sent
to the parties on 6 November 1995 and they were invited to submit such
further information or observations on the merits as they wished.
10. The Government and the applicants each submitted further
observations on 20 December 1995. The Government also submitted
additional observations on 29 February 1996. In their submissions the
Government argued that domestic remedies were not fully exhausted
within the meaning of Article 26 of the Convention; and that the
applicants could not claim to be victims within the meaning of
Article 25 of the Convention. However, the Commission found no basis
for applying Article 29 of the Convention.
11. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
12. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. H. DANELIUS, Acting President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
13. The text of this Report was adopted on 18 April 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
14. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
15. The Commission's decision on the admissibility of the application
is annexed hereto.
16. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
1. The Mühleberg Nuclear Power Plant
17. The nuclear power plant at Mühleberg in the Canton of Bern 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.
18. 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, para. 33) could
file an objection (Einsprache).
19. The applicants reside in the vicinity of the Mühleberg nuclear
power plant. 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.
2. Objections against request for operation permit
20. 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.
21. 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.
22. 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."
23. 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.
24. 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.
3. Federal Council's decision of 14 December 1992
25. 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.
26. 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.
27. 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.
28. In its decision the Federal Council considered that nuclear power
plants built in the early 1970s 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.
29. 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
1. Federal Nuclear Act
30. 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. Section 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.
31. According to the Federal Court's case-law, "the issue of the
nuclear safety of a nuclear power plant must be examined entirely by
the Federation in the context of its authorisation procedures" ("die
Frage der nuklearen Sicherheit einer Atomanlage abschliessend durch den
Bund im Rahmen seiner Bewilligungsverfahren zu prüfen ist"; see Arrêts
du Tribunal Fédéral Suisse [ATF] 119 Ia 402).
2. Federal Judiciary Act
32. According to Section 96 of the Federal Judiciary Act
(Organisationsgesetz) an administrative court appeal (Verwaltungs-
gerichtsbeschwerde) 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.
3. Federal Administrative Procedure Act
33. 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.
4. Swiss Civil Code
34. Section 679 of the Swiss Civil Code (Zivilgesetzbuch) states as
regards relations between private neighbours:
(Translation)
"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."
(Original)
"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."
35. 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.
5. Federal Act on Expropriation
36. 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:
(Translation)
"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."
(Original)
"Gegenstand des Enteignungsrechts können ... die aus dem
Grundeigentum hervorgehenden Nachbarrechte, ferner die
persönlichen Rechte von Mietern ... des von der Enteignung
betroffenen Grundstückes sein."
37. 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." (see ATF 116 Ib 253)
38. 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)
39. 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).
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
40. The following complaints were declared admissible:
- under Article 6 para. 1 (Art. 6-1) of the Convention the
applicants' complaint 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 and about the
proceedings before the Federal Council;
- under Article 13 (Art. 13) of the Convention the applicants'
complaint 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.
B. Points at issue
41. Accordingly, the issues to be determined are:
- whether there has been a violation of Article 6 para. 1
(Art. 6-1) of the Convention;
- whether there has been a violation of Article 13 (Art. 13) of the
Convention.
C. Article 6 para. 1 (Art. 6-1) of the Convention
42. The applicants complain under Article 6 para. 1 (Art. 6-1) of the
Convention of the lack of access to court. In particular, they 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 also complain that the Federal Council disregarded basic
principles of fairness and that the Federal Council and various
witnesses were not impartial.
43. 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
..."
44. The applicants submit that the jurisdiction in matters of nuclear
energy falls exclusively to the Federal Council. Insofar as it would
be possible to institute compensation proceedings before a court for
the expropriation of the property rights, the applicants submit that
the court concerned could not examine whether the operation permit of
the Federal Council should be quashed or withdrawn. The applicants
also refer to the Federal Court's case-law according to which matters
of nuclear safety are to be examined solely by the Federation.
Finally, the applicants point out that an administrative law appeal to
the Federal Court against a decision of the Federal Council would not
have been possible.
45. The respondent Government contest the applicability of Article 6
para. 1 (Art. 6-1) of the Convention to the proceedings at issue. The
Government furthermore contend that the applicants failed to raise
their complaints in the domestic proceedings, though the formal and
material aspects of the present case partly coincide. In principle,
the Government distinguish between access to court within the meaning
of Article 6 (Art. 6) of the Convention in respect of the operation
permit itself, on the one hand, and in respect of any damage resulting
from the operation of the nuclear power plant, on the other.
46. Insofar as the applicants relied on health hazards, the
applicants would, in the Government's opinion, be contesting the
operation permit as such. In this respect the Government do not
exclude that an action could have been raised on the basis of
Sections 679 and 684 of the Swiss Civil Code or of Section 5 of the
Federal Expropriation Act, though it is submitted, also with reference
to the Government's submissions upon the admissibility of the
application (see below, p. 21), that this would have been an
exceptional case.
47. Insofar as the applicants invoke their right to property, the
Government submit that they could have filed an action based on
Sections 679 and 684 of the Civil Code, 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. While no
decision could be taken on the operation permit itself, the judge
concerned would have decided any financial claims resulting from the
activities of the nuclear power plant.
48. According to the Convention organs' case-law, Article 6 para. 1
(Art. 6-1) of the Convention secures to everyone the right to have any
claim relating to his civil rights and obligations brought before a
court or tribunal; in this way the Article embodies the "right to a
court" of which the right of access, that is the right to institute
proceedings before courts in civil matters, constitutes one aspect (see
Eur. Court H.R., Golder judgment of 21 January 1975, Series A no. 18,
p. 18, para. 36; Philis judgment of 27 August 1991, Series A no. 209,
p. 20, para. 59). Moreover, the Convention calls at least for one of
the following systems: either the jurisdictional organs themselves
comply with the requirements of Article 6 para. 1, (Art. 6-1) or they
do not so comply but are subject to subsequent control by a judicial
body that has full jurisdiction and does provide the guarantees of
Article 6 para. 1 (Art. 6-1) (see Eur. Court H.R., Albert and Le Compte
judgment of 10 February 1983, Series A no. 58, p. 16, para. 29).
Furthermore, in assessing the sufficiency of the review available to
the applicants, regard must be had to matters such as the subject-
matter of the contested decision, the manner in which that decision was
arrived at, and the content of the dispute, including the desired and
actual grounds of the action or appeal (see Eur. Court H.R., Bryan v.
the United Kingdom judgment of 22 November 1995, Series A no. 335-A,
para. 45).
49. In the present case, the applicants claim that in view of their
right to bodily integrity and their property rights, an operation
permit should not have been granted to the Mühleberg nuclear power
plant.
50. The Commission - which in its decision on admissibility has found
Article 6 para. 1 (Art. 6-1) of the Convention to be applicable in the
present case - must therefore examine whether the applicants had at
their disposal a "tribunal" within the meaning of that provision which
would have examined these claims.
51. There can be no doubt that the Federal Council, i.e. the Swiss
Federal Government, which decided on 14 December 1992 in first and last
instance on the operation permit, did not constitute a tribunal within
the meaning of Article 6 para. 1 (Art. 6-1). Indeed, the applicants
are complaining that there was no court which could have reviewed the
Federal Council's decision.
52. The issue arises whether the applicants could have brought their
claims before any domestic court.
53. The Commission notes that Section 679 of the Swiss Civil Code
envisages the possibility of introducing an action alleging a breach
of property rights of a neighbour for damage emanating from another
neighbouring property. This action may be introduced against private
persons and companies. In the present case the Commission notes that
the Mühleberg nuclear power plant is indeed run by a private company.
54. Moreover, if such damage were to arise in the context of a
construction in the interest of the Confederation or another public
interest, as could also be alleged in the present case, Section 5 of
the Federal Expropriation Act envisages the possibility of obtaining
compensation for the expropriation of the property rights of the
neighbour (see above, paras. 36 et seq.).
55. However, the courts would not have full jurisdiction to review
the factual and legal issues of the case within the meaning of the
Convention organs' case-law (see Eur. Court H.R., Albert and Le Compte
judgment, loc. cit., Bryan judgment, loc. cit.). Thus, according to
the Federal Court's case-law, matters of nuclear safety are solely to
be examined by the Federation in the context of its authorisation
procedures (see above, para. 31). Indeed, in proceedings based on
Section 5 of the Federal Expropriation Act, the Federal Court has held
that the court merely has the competence to examine whether there is
a right at issue, and to determine the amount of compensation for
expropriation (see above, paras. 37 et seq.).
56. In the Commission's opinion, therefore, no procedure has been
sufficiently made out which would have enabled a court to review the
Federal Council's decision as to the applicants' claim that, in view
of their right to bodily integrity and their property rights, an
operation permit should not have been granted to the Mühleberg nuclear
power plant (see above, para. 49).
57. The applicants did not, therefore, have access to a court as
required by Article 6 para. 1 (Art. 6-1) of the Convention.
CONCLUSION
58. The Commission concludes, by 16 votes to 12, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
D. Article 13 (Art. 13) the Convention
59. The applicants have also complained 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.
60. 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."
61. The respondent Government submit that the applicants have not put
forward any "arguable claims" as established in the Convention organs'
case-law (see Eur. Court H.R., Boyle and Rice v. United Kingdom
judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).
62. The Commission considers that the applicants, who have also
invoked Articles 2 (Art. 2) and 8 (Art. 8) of the Convention, are in
fact complaining of the decision of the Federal Council of 14 December
1992. In respect of this decision, the Commission has just found that
there has been a breach of Article 6 para. 1 (Art. 6-1) of the
Convention in that the applicants did not have access to a court, as
required by this provision. The Commission furthermore recalls the
case-law according to which Article 13 (Art. 13), as a more general
guarantee, is not applicable in cases where the more specific
guarantees of Article 6 (Art. 6) apply. The requirements of Article 13
(Art. 13) are less strict than, and are here absorbed by, those of
Article 6 (Art. 6) of the Convention (see Eur. Court H.R., Philis
judgment of 27 August 1991, Series A no. 209, p. 23, para. 67).
CONCLUSION
63. The Commission concludes, by 27 votes to 1, that no separate
issue arises under Article 13 (Art. 13) of the Convention.
E. Recapitulation
64. The Commission concludes, by 16 votes to 12, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see
above, para. 58).
65. The Commission concludes, by 27 votes to 1, that no separate
issue arises under Article 13 (Art. 13) of the Convention (see above,
para. 63).
Secretary to the Commission Acting President
of the Commission
(H.C. KRÜGER) (H. DANELIUS)
(Or. English)
DISSENTING OPINION OF MM. H.G. SCHERMERS, B. MARXER,
M.A. NOWICKI, I. CABRAL BARRETO, J. MUCHA AND C. BÎRSAN
We regret that we cannot agree with the majority that there has
been a violation of Article 6 para. 1 of the Convention.
We note that Section 679 of the Swiss Civil Code envisages an
action alleging a breach of property rights of a neighbour for damage
emanating from another neighbouring property (see above, para. 53).
Moreover, Section 5 of the Federal Expropriation Act envisages
the possibility of obtaining compensation for the expropriation of the
property rights of the neighbour (see above, para. 54).
According to the Federal Court's case-law (see above, paras. 37
et seq.), a court will then decide on the matter; in particular, the
court has the competence to examine whether there is a right at issue,
and to determine the amount of compensation for expropriation. In the
light of the principle of proportionality, expropriation may cover some
or all of the person's property rights as a neighbour. If the
expropriating neighbour refuses to institute such proceedings, the
Federal Court, acting upon the neighbour's administrative law appeal,
will decide in last instance.
We further note that according to the Federal Court's case-law
(see above, para. 39), compensation will be granted if the nuisance was
not foreseeable; if it specially concerned the proprietor; and if it
resulted in serious damage. In the present case, at least the
proprietors and tenants living in the area before the nuclear power
plant was constructed, could have maintained that the alleged damage
resulting from the nuclear power plant was unforeseeable. They could
also have claimed that as the immediate neighbours they were specially
concerned; and that the effects of the nuclear power plant would result
in serious hazards to their health. Their claims to compensation would
not therefore appear prima facie unreasonable.
The applicants nevertheless dispute whether such a court could
have decided freely; they consider that such a court would consider
itself bound by the operation permit granted by the Federal Council,
i.e. the Swiss Government.
It is true that the proceedings referred to would not have
permitted an examination of the operation permit of the nuclear power
plant as such.
However, the courts concerned would have been called upon to
address the issue of compensation for the limitation in value of the
applicants' property rights in view of the interference, if any, with
their bodily integrity. Moreover, when examining whether or not to
award compensation for expropriation of some or all of the applicants'
property rights, the courts concerned would have been obliged to
address the issue of health hazards, if any, arising from the nuclear
power plant.
Finally, according to the Federal Court's case-law, the courts
would have been unrestricted in their examination as to whether
property rights of the applicants as neighbours existed; as to the
extent to which the property rights had been restricted in view of any
health hazards; and as to the amount of compensation to be awarded (see
above, para. 38).
In our opinion, the applicants would therefore have had a
tribunal at their disposal within the meaning of Article 6 para. 1 of
the Convention.
In our view therefore there has been no violation of Article 6
para. 1 of the Convention.
(Or. English)
DISSENTING OPINION OF MR. S. TRECHSEL
JOINED BY MM. A.S. GÖZÜBÜYÜK, B. CONFORTI,
D. SVÁBY, P. LORENZEN AND K. HERNDL
I regret that I cannot agree with the majority that there has
been a violation of Article 6 in the present case as I am of the
opinion that Article 6 does not apply to the dispute at issue.
If one looks at the applicants' complaints in a narrow
perspective, it is difficult to distinguish the case from previous
case-law, e.g., the case of Benthem (see Eur. Court H.R., judgment of
23 October 1985, Series A no. 97) and of Skärby (see Eur. Court H.R.,
judgment of 28 June 1990, Series A no. 180-B).
However, the present case concerns the authorisation to operate
a nuclear power plant. This is a matter of national importance which
is the object of heated public debate in Switzerland as well as in
other countries. On the one hand, such plants produce a considerable
part of the energy consumed in the country at relatively low ecological
costs; on the other hand, the dangers of such an operation are enormous
in case of an accident. As the Chernobyl catastrophe has shown,
effects may be registered at hundreds, if not thousands of kilometers'
distance.
In contrast to the cases dealt with so far by the Commission and
the Court, the issues involved in the authorisation to operate a
nuclear power plant go far beyond the immediate neighbourhood. While
I do not deny that civil rights of neighbours may be affected, I find
it artificial to say that the decision on such an authorisation can be
regarded as a "determination of civil rights and obligations".
I will illustrate this with an argument ad absurdum:
Let us suppose a Government envisages military action against a
neighbouring country. It will be possible to identify certain
geographical areas with a high probability of considerable damage to
property, even to life and limb. Could persons living in that area
apply to a court with a view to having it decide whether the
belligerent action is lawful? I cannot believe that such an
interpretation of Article 6 would be correct.
The policy of a country in matters of energy-supply is of general
interest and must be decided upon in the democratic political process
designed for decision-making on the national level. It can hardly be
expected that such decisions will meet with general approval. For
instance, it is probable that there will be objections from persons
living in the vicinity of a nuclear power plant or other installations
linked with certain dangers or producing adverse environmental effects
such as pollution.
I would not go so far as to say that in no case could any
question arising in such a context be regarded as falling to be decided
according to the rules laid down in Article 6. Actually, to the extent
that a person considers that the operation of a nuclear power plant
amounts to a (partial) expropriation, access to court is fully
guaranteed under Swiss law (cf. the dissenting opinion of MM. H.G.
Schermers, B. Marxer, M.A. Nowicki, I. Cabral Barreto, J. Mucha and
C. Bîrsan). However, in the present case the "dispute" concerns the
basic decision to authorise the operation of the plant to continue.
The Convention cannot, in my view, be interpreted as requiring that
such a decision should in the last instance be taken by a judicial
organ. I conclude, therefore, that Switzerland could, without
violating Article 6, decide that this decision be left with the
political authorities of the Federation.
(Or. English)
DISSENTING OPINION OF MR. J.-C. SOYER
I have voted against the finding of the Commission that no
separate issue arises in respect of the complaint under Article 13 of
the Convention.
In my view, the conclusion should be that there has been no
violation of Article 13 of the Convention.
Full & Egal Universal Law Academy