Published on 27 September 2021
THIRD SECTION
Application no. 4976/20
Regula JANN-ZWICKER and Gregor JANN
against Switzerland
lodged on 14 January 2020
communicated on 6 September 2021
SUBJECT MATTER OF THE CASE
The applicants are the widow and son of Marcel Jann (born in 1953) who died from cancer in 2006. The application concerns their civil lawsuit to obtain compensation for his emotional distress on account of his illness caused by the exposure to asbestos from 1961 until 1972 when living in a rented house in close proximity of a factory where fibrous asbestos minerals were processed and a train station where asbestos bags were being unloaded.
The applicants brought a claim against two companies and two private persons, relying on contractual and non-contractual claims. Their lawsuit was dismissed in first instance without examination on the merits on account of the lapse of the absolute prescription period of ten years, which was upheld on appeal. The applicants seized the Federal Court (Bundesgericht), while also requesting the suspension of the proceedings until the outcome of the application Howald Moor and Others v. Switzerland (nos. 52067/10 and 41072/11) then pending before the European Court. After the latter delivered its judgment in that case, the proceedings before the Federal Court were suspended to await the outcome of the revision of the provisions relating to the statute of limitations then pending before the Parliament. The applicants twice requested the termination of the suspension of the proceedings which were eventually resumed after the Parliament had adopted the awaited new legislative provisions.
On 6 November 2019 the Federal Court rejected the applicants’ claims. It held that the revised provisions relating to the statute of limitations were not applicable to the present dispute. It also referred to the general measures envisaged for the execution of the above-cited Howald Moor and Others judgment. In conclusion, the Federal Court dismissed the claims on account of the expiry of the absolute prescription period of ten years.
QUESTIONS TO THE PARTIES
1. Did the applicants have access to a court for the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, does the application by the domestic courts to this case of sections 60(1) and 130(1) of the Code of Obligations, which provide for an absolute limitation period of ten years and which, according to the Federal Court’s case-law, is calculated from the date of the (end of the) harmful act for contractual and non-contractual claims for compensation, entail a violation of the right of access to a court as guaranteed by Article 6 § 1 of the Convention (see Howald Moor and Others v. Switzerland, nos. 52067/10 and 41072/11, §§ 74-80, 11 March 2014)?
2. Was the length of the applicants’ civil proceedings, which they lodged on 16 July 2009 and which ended on 6 November 2019, in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? In particular, did the suspension of the proceedings before the Federal Court from 8 April 2014 until 6 November 2018 comply with the said Convention requirements?
ANNEXE
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
Regula JANN‑ZWICKER
1948
Swiss
Thalwil
2.
Gregor JANN
1983
Swiss
Zürich
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