BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50495/99
by Ursula BALMER-SCHAFROTH and Others
against Switzerland

The European Court of Human Rights (Second Section), sitting on 13 September 2001 as a Chamber composed of

MrC.L. Rozakis, President,
MrA.B. Baka,
MrL. Wildhaber,
MrG. Bonello,
MrE. Levits,
MrA. Kovler,

MrV. Zagrebelsky, judges,
and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced on 30 April 1999 and registered on 24 August 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants are Ursula Balmer-Schafroth, Ueli Balmer-Schafroth, Ursula Wanner and Rainer Zur Linde, all Swiss citizens who live in Wileroltigen and Detligen in Switzerland. They are represented before the Court by Mr Rainer Weibel, a lawyer practising in Bern. The applicants were among the ten applicants in the previous Balmer-Schafroth and Others v. Switzerland case (see judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, pp. 1346 et seq.).

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants live in the alarm zone 1 within a radius of between four and five kilometres from the nuclear power station at Mühleberg in Switzerland.

On 14 December 1992, the Federal Council (Bundesrat) granted to the Mühleberg nuclear power station the operating licence for a limited period, i.e. until 31 December 2002. This decision of the Federal Council was contested before the Court and led to the judgment in the Balmer-Schafroth and Others case (cited above).

In 1996 the company which operated the nuclear power station, the Bernische Kraftwerke AG, maintaining economic reasons, filed a request to cancel the limitation of the period of operation, and to obtain a licence for an unlimited period. The application was published in the Federal Gazette (Bundesblatt), whereupon 1,170 persons and four organisations filed objections thereto.

The Federal Department of Transport and Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement) then requested the Technical Examination Board TÜV, a German association, to examine in particular the relevance of certain cracks in the inner nuclear casing (Kernmantel) of the nuclear power station. In its expert opinion of 29 January 1998, numbering 178 pages, the TÜV concluded that the cracks endangered neither the possibility to turn off, or to cool, the reactor. The calculations of the growth in the cracks disclosed that in the coming years the security would only insignificantly be reduced. Moreover, the producer had considered all possible accident combinations. The report also noted that the control programs and methods were such that they could detect such cracks and determine their size, and to do so within a time-limit before the cracks became dangerous.

Following this expert opinion, various persons applied to the Federal Council for a complete examination of all welded joints of the nuclear casing. The “Mühleberg association”, an association aiming at the closure of the Mühleberg nuclear power station, requested Mr C.K., a physicist, to comment on the TÜV expert opinion.

In his reply, dated 30 April 1998, the expert C.K. concluded that the “size of the cracks may [have been] substantially underestimated”, and that so far the effects of the cracks in the nuclear casing upon the security of the nuclear power station had only insufficiently been examined.

By decision of 28 October 1998 the Federal Council dismissed the various objections and prolonged the operating licence for a period of ten years, i.e. until 31 December 2012. The decision considered that due to various modernisations the Mühleberg nuclear power station had meanwhile become more secure than when it had been constructed. There were no defaults of a technical nature which would exclude a secure operation of the station. The Federal Nuclear Safety Inspectorate (Hauptabteilung für die Sicherheit der Kernanlagen) had given the go-ahead, and the TÜV expert opinion concluded that the cracks found did not impair the security.

The decision also noted that the Federal Nuclear Energy Act (Atomgesetz) did not grant a right to an unlimited period of operation. In view of a popular consultative referendum in the Canton of Bern in 1992, in which the populace had in fact expressed itself against the Mühleberg nuclear power station, the Federal Council decided to grant a license for only a limited period of ten years.

On 24 April 2000, the “Mühleberg association” wrote to the Federal Council, requesting a public hearing of the Federal Nuclear Safety Inspectorate as to the conditions for a possible closure of the Mühleberg power station. By letter dated 19 May 2000, Mr M. Leuenberger, a Federal Councillor (Bundesrat), refused the request. Annexed to the letter was a statement of the Federal Nuclear Safety Inspectorate dealing, inter alia, with the issue of an earthquake in the Mühleberg area. It was considered that the probability of damage to the nuclear reactor lay between (5-10)x10-6 per year, a figure based on all accidents of nuclear power stations of the world resulting from earthquakes, and that indeed, the Mühleberg nuclear power station had been constructed to withstand earthquakes. The probability of a plane crash on the nuclear power station was negligibly small.

On 8 September 2000 the applicants filed with the Federal Council a request for reconsideration of its decisions of 14 December 1992 and 28 October 1998.

B.  Relevant domestic law

Under Section 4 § 1 (a) of the 1959 Federal Nuclear Energy Act, a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations. Section 5 § 1 provides that a license must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important rights. Section 6 provides that the Federal Council or a body designated by it decides license applications. No appeal lies against its decisions. Section 8 stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision; the Federal Council and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order, in particular, to protect people, the property of others and important rights; they are also entitled to supervise compliance with these instructions.

Under the Federal Court’s case-law, the safety of nuclear power plants can be considered by the Confederation only in the context of its licensing procedures (see judgments of the Federal Court (BGE [Bundesgerichtsentscheide] 119 Ia, p. 402).

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that they did not have a court before which they could contest the decision of the Federal Council of 28 October 1998 to prolong the operating licence for the Mühleberg nuclear power station. The applicants submit in support of their complaints, inter alia, two expert opinions from which, in their view, it transpires that the Mühleberg nuclear power station presents a serious, specific and imminent danger as required by the Court’s case-law (see judgment of Balmer-Schafroth and Others cited above, p. 1359, § 40).

One expert opinion, dated 23 April 1999, was prepared for the Court by Mr J.A., a physicist. Therein, the expert relied, inter alia, on four events concerning the nuclear power station, namely a fire in 1971, a breakdown of filters in 1986, the cracks in the nuclear casing since 1990, and security deficiencies confirmed by the fact that in 1989 a temporary worker had been able to take photos in the power station. The opinion concluded, inter alia, that the Swiss authorities assumed probabilities for an earthquake which were too low and that the nuclear power station was insufficiently protected against earthquakes and fires; that various aspects of the nuclear power station did not respond to modern requirements; and that an increased risk arose from the fact that the existing emergency systems could not compensate for all deficiencies.

The other expert opinion, dated 30 May 1999, was prepared by Mr M.W., a medical doctor, who dealt in particular with health issues arising from nuclear power stations. The expert considered that the health of persons living in the vicinity of the Mühleberg nuclear power station might be irreparably damaged without the victims feeling anything; that even very low radioactive radiation might be harmful; and that even a small accident might result in additional cancer diseases or genetic disorders.

In the light thereof, the applicants consider that the danger emanating from the Mühleberg nuclear power plant is serious in that radioactive radiation generally damages human health, even in comparatively small doses of radiation. The danger is specific in that considerable security measures have to be undertaken to prevent nuclear fission endangering human health, and it is notorious that in case of accidents human health would seriously be at risk. Finally, the danger is imminent in that the probability of an accident - in particular an earthquake - is higher than accepted by the national authorities and in that there is a considerable discrepancy between the technical developments and the actual international safety standards.

THE LAW

The applicants complain under Article 6 § 1 of the Convention that they did not have a court before which they could contest the decision of the Federal Council of 28 October 1998 to prolong the operating licence for the Mühleberg nuclear power station. Article 6 § 1 states, insofar as relevant:

"1.  In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] tribunal ...”

The Court observes that the applicable domestic legislation and the nature of the grievance raised under Article 6 § 1 of the Convention are the same as in the earlier cases v. Switzerland of Balmer-Schafroth and Others (cited above) and of Athanassoglou and Others ([GC], no. 27644/95, ECHR 2000-), though the present case concerns the subsequent operating licence issued by the Federal Council on 28 October 1998. The applicants moreover distinguish the present case from their previous one by submitting new scientific support for their claim that the Mühleberg nuclear power station presents a serious, specific and imminent danger for them within the meaning of the Court’s case-law.

The Court reiterates that, according to its well-established case-law, Article 6 § 1 of the Convention may be relied on by individuals who consider that an interference with the exercise of one of their (civil) rights is unlawful and complain that they have not had the possibility of submitting that claim to a court meeting the requirements of Article 6 § 1 (see the Le Compte, Van Leuven and De Meyere v. Belgium judgment of 23 June 1981, Series A no. 43, p. 20, § 44). This right to a court extends only to “disputes” (“contestations” in the French text) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law; Article 6 § 1 does not in itself guarantee any particular content for “civil rights and obligations” in the substantive law of the Contracting States. 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. The outcome of the proceedings must be directly decisive for the right in question. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play (see the following judgments: Le Compte, Van Leuven and De Meyere cited above, pp. 21-22, § 47; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, pp. 45-46, § 56; Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44; Balmer-Schafroth and Others cited above, p. 1357, § 32; Le Calvez v. France, 29 July 1998, Reports 1998-V, p. 1899, § 56).

In the present case, the Court accepts that there existed one or more “rights” recognised under Swiss law, in particular the applicants’ rights to life, to physical integrity and of property, and that there was a “genuine and serious“ dispute of a justiciable nature between the applicants and the decision-making authorities as to whether the license for the operation of the Mühleberg nuclear power station should be extended (see the Balmer-Schafroth and Others judgment cited above, pp. 1358-1359, §§ 34-38; Athanassoglou and Others cited above, §§ 44-46).

There remains the question whether there was a “dispute” in that whether the outcome of the procedure leading to the new decision was directly decisive for those domestic-law rights. This raises the same issue of remoteness as in the former Balmer-Schafroth and Others case, namely as to whether the link between the Federal Council’s decision and the applicants’ rights to adequate protection of their life, physical integrity and property was sufficiently close to bring Article 6 § 1 into play, and was not too tenuous or remote (see Athanassoglou and Others cited above, § 46).

In the present case, the Court considers, on the one hand, that the Federal Council based its licensing decision of 28 October 1998 on the conclusions reached by the TÜV and the Federal Nuclear Safety Inspectorate. On the other hand, the Court does not perceive any material difference between the present case and the former Balmer-Schafroth and Others case as regards the personal circumstances of the applicants. In neither case had the applicants at any stage of the proceedings claimed to have suffered any loss for which they intended to seek compensation. Contrary to the view expressed by the applicants, it cannot be said that the new expert opinions, in particular those presented by MM. J.A. and M.W., showed that at the relevant time the operation of the Mühleberg power station exposed the applicants personally to a danger that was not only serious but also specific and, above all, imminent (ibid., § 51).

The Court arrives in the present case at the same conclusion on the facts as in the previous Balmer-Schafroth and Others case (see the judgment cited above, p. 1359, § 40), namely that the connection between the Federal Council’s decision and the domestic-law rights invoked by the applicants was too tenuous and remote. As a result, the outcome of the procedure before the Federal Council was not decisive for the “determination” of any “civil right”, such as the rights to life to physical integrity and of property, which Swiss law conferred on the applicants in their individual capacity.

It follows that Article 6 § 1 of the Convention is not applicable in the instant case. The application is therefore inadmissible as being incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Erik FriberghChristos Rozakis
RegistrarPresident

Full & Egal Universal Law Academy