Europäischer Gerichtshof für Menschenrechte
Cour européenne des droits de l'homme
Corte europea dei diritti dell'uomo
European Court of Human Rights
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:
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."
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:
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."
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