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. 30003/96

by L., M. and R.

against Switzerland

The European Commission of Human Rights sitting in private on
1 July 1996, the following members being present:

MM. H. DANELIUS, Acting President

S. TRECHSEL

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

G.B. REFFI

M.A. NOWICKI

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 January 1996
by L., M. and R. against Switzerland and registered on 29 January 1996
under file No. 30003/96;

Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, born in 1959, is a nurse. The second

applicant, born in 1945, is a teacher. The third applicant, born in
1911, is a pensioner. All applicants are Swiss citizens residing at
Muttenz in the Canton of Basel-Landschaft in Switzerland. Before the
Commission the applicants are represented by Mr Martin Pestalozzi, a
lawyer practising in Rüti in the Canton of Zürich.

A. Particular circumstances of the case

The Gösgen and Beznau I and II nuclear power stations dispose of
their nuclear waste, in particular their waste fuel rods (Brennstäbe)
by transporting them by rail to France or Great Britain. The waste is
placed in heavy transport containers. Annually, approximately 20 rail
transports take place.

The applicants live in the vicinity of Muttenz railway station.
Some of the nuclear waste is transported by rail to Muttenz railway
station where it stays in the goods yard for approximately two hours.
Thereafter, it is transported via Basel to St. Louis in France. In
1990 twelve such transports passed through Muttenz.

On 20 January 1992 the applicants requested the Federal Office
for Energy Administration (Bundesamt für Energiewirtschaft) to grant
them standing in proceedings concerning the authorisation of the
transport of waste from nuclear power plants. They submitted that they
were in the same position as the neighbours of nuclear power plants who
were also granted standing in the authorisation proceedings.
The applicants pointed out that the materials at issue often
stayed for hours at the Muttenz railway station, and that it could not
be excluded that in case of a serious accident, radioactive materials
would be set free. Depending on the weather, such materials could
affect the population in the surrounding areas.

On 8 April 1992 the Federal Office for Energy Administration
(Bundesamt für Energiewirtschaft) dismissed the request on the ground
that the transports were carried out in conformity with national and
international norms which protected the security of the workers
involved as well as of the population in the vicinity. Thus, the
integrity and density of the containers assured their security even in
the case of very serious accidents. Indeed, every year hundreds of
transports were undertaken worldwide without any problems. In view
thereof and of the fact that the transports only occurred occasionally,
the Federal Office found that the applicants could not be granted
standing in the authorisation proceedings.

The applicants' appeal against this decision was dismissed on 24
March 1994 by the Federal Department of Transport and Energy
(Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement). The
Department found that the applicants did not have locus standi in that
they were not sufficiently affected within the meaning of Section 48
of the Federal Act on Administrative Procedure (see below, Relevant
domestic law).

The applicants then filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)
dismissed on 19 May 1995, the decision being served on 24 July 1995.
In its decision the Federal Court noted that Section 100 (u) of
the Federal Judiciary Act (Organisationsgesetz) only excluded
administrative law appeals in the case of authorisations concerning
nuclear power plants, not the transport of nuclear waste (see below,
Relevant domestic law). The applicants were therefore entitled to file
an administrative law appeal and to complain that the competent
authority had not granted them locus standi. The decision continued:
Translation

"It is not disputed that no additional nuisance results for the
applicants from the normal preparation of the transports. Thus,
the only issue concerning their locus standi can be the risk of
an accident. The area bordering the entire transport route is
potentially endangered, though only during the few annual

transports, and, in addition, only for the temporarily limited
period when the transports pass through. An accident would often
be less dangerous for the immediately affected neighbours than
a train accident involving toxic chemicals or fuels. The Main
Department for the Security of Nuclear Power Stations has stated
in its report ordered by the authority previously dealing with
this case that the risk relating to the transports of nuclear
rods was negligible. Even in the case of a serious accident, the
probability of which was slight, the integrity of the transport
containers would remain intact. Based on the applicable

international norms these have been conceived in such a manner
that even in the case of severe strain only a limited amount of
radioactivity could escape. The doses to be expected in the case
of a radiation accident do not present an acute danger for the
population; in an adverse case the radiation... would locally
be comparable to the natural radiation to which every person in
Switzerland is subjected every year. The applicants reproach
this expert opinion of containing serious scientific errors; it
transpires in their view from the opposite expert opinion that
the contested transports have, on the contrary, a considerable
risk potential. This issue need not definitely be resolved in
the present case. Even the applicants agree that, in the case
of a transport accident, far less radiation is to be expected
than in the case of a serious nuclear power plant accident. In
these circumstances the authority whose decision has been

appealed against has not breached federal law nor wrongly

determined or incompletely established the relevant facts...
when it considered that for the individual person living along
the transport line the probability of radioactive radiation was
not significantly higher than the general risk, and that for this
reason it could not be stated that there was a particularly

serious danger potential which alone would entitle the individual
to defend his interests in the authorisation proceedings.

c)... Individual persons living along the transport route do
not enjoy locus standi in the respective proceedings (merely) in
view of their local vicinity. Rather, they must demonstrate a
particular, extraordinary, concrete danger resulting from the
transport. This has not been done in this case."

German

"Aus der normalen Abwicklung der Transporte ergeben sich für die
Beschwerdeführer unbestrittenermassen keine zusätzlichen

Immissionen, weshalb es bei der Frage nach ihrer Parteistellung
nur um das Risiko eines Störfalles gehen kann. Potentiell

gefährdet ist dabei das anstossende Gebiet entlang der gesamten
Transportstrecke, jedoch nur während der wenigen jährlichen

Transporte und zudem nur zeitlich beschränkt für die Dauer der
Durchfahrt des Transports. Ein Unfall wäre für die unmittelbar
betroffenen Anwohner häufig weniger gefährlich als ein

Bahnunglück mit toxischen Chemikalien oder mit Treibstoffen. Die
Hauptabteilung für die Sicherheit der Kernanlagen bezeichnet in
dem von der Vorinstanz eingeholten Amtsbericht das mit

Brennelementtransporten verbundene Risiko denn auch als

vernachlässigbar klein. Selbst bei einem schweren Unfall, dessen
Wahrscheinlichkeit sehr gering sei, dürfte die Integrität der
Transportbehälter erhalten bleiben. Diese seien gestützt auf die
geltenden internationalen Normen so ausgelegt, dass selbst bei
harten Testbeanspruchungen nur eine begrenzte Radioaktivität
entweichen könne. Die bei einem Strahlenunfall zu erwartenden
Dosen stellten keine akute Gefährdung der Bevölkerung dar; in
einem ungünstigen Fall sei die Strahlenbelastung... lokal

vergleichbar mit der natürlichen Bestrahlung, der sich jede

Person in der Schweiz Jahr für Jahr ausgesetzt sehe. Die

Beschwerdeführer werfen diesem Gutachten zwar grobe

wissenschaftliche Mängel vor; aus den von ihnen eingereichten
Gegengutachten ergebe sich, dass den streitigen Transporten im
Gegenteil ein sehr erhebliches Gefährdungspotential innewohne.
Wie es sich damit verhält, braucht im vorliegenden Zusammenhang
nicht abschliessend geklärt zu werden. Auch nach Ansicht der
Beschwerdeführer ist bei einem Transportunfall mit weit

geringeren Strahlendosen zu rechnen als bei einem schweren

Kernkraftwerkunfall. Wenn die Vorinstanz unter diesen Umständen
davon ausgegangen ist, dass für den einzelnen Streckenanwohner
die Wahrscheinlichkeit einer radioaktiven Verstrahlung im

Vergleich zum entsprechenden allgemeinen Risiko nicht signifikant
höher sei und deshalb nicht von einem besonders grossen

Gefährdungspotential gesprochen werden könne, das den Einzelnen
erst berechtigen würde, seine Interessen im Bewilligungsverfahren
wahrzunehmen..., hat sie weder Bundesrecht verletzt noch den
entscheidswesentlichen Sachverhalt falsch oder unvollständig
festgestellt.

c)... (E)inzelnen Anwohnern kommt im entsprechenden Verfahren
nicht bereits (bloss) wegen ihrer örtlichen Nähe zur Trans-

portroute Parteistellung zu, sondern nur, wenn sie eine besonde-
re, durch den Transport verursachte, überdurchschnittliche, kon-
krete Gefährdung darzutun vermögen, was hier nicht der Fall ist."
B. Relevant domestic law and practice

According to Section 4 para. 1 of the Federal Nuclear Act

(Eidgenössisches Atomgesetz) of 23 December 1959, the transport of
radioactive materials and waste will require an authorisation by the
Swiss Confederation (Bund). According to Section 5 para. 1, such an
authorisation shall be refused or subjected to conditions if human life
or other important assets are at risk. Section 6 states that the
Federal Council, or a body designated by it, will decide whether or not
to grant such authorisations.

Section 100 (u) of the Federal Judiciary Act

(Organisationsgesetz) excludes administrative law appeals

(Verwaltungsgerichtsbeschwerden) "in matters of nuclear power: against
decisions concerning the authorisations for nuclear power plants and
for preparatory acts" ("auf dem Gebiete der Kernenergie: Verfügungen
über Bewilligungen von Kernanlagen und von vorbereitenden Handlungen").
Section 103 of the Federal Judiciary Act entitles a person to
file an administrative law appeal, and Section 48 of the Federal Act
on Administrative Procedure (Verwaltungsverfahrensgesetz) to file an
appeal (Beschwerde), if the person concerned is "affected by the
contested order and has an interest worthy of protection in its
quashing or amendment" ("durch die angefochtene Verfügung berührt ist
und ein schutzwürdiges Interesse an deren Aufhebung oder Änderung
hat").

According to Section 104 of the Federal Judiciary Act, an

administrative law appeal can serve to complain of a breach of federal
law or the incorrect or incomplete determination of the facts. Section
105 provides that the Federal Court may examine the facts ex officio,
except where a judicial body has previously been seized of the case.
COMPLAINTS

1. Under Article 6 para. 1 of the Convention the applicants complain
that they have been denied access to court in respect of their
complaints about the dangers emanating from the rail transports of
dangerous radioactive materials. They request locus standi in the
proceedings concerning the authorisation of such permits. The
applicants submit that Article 6 para. 1 of the Convention is
applicable in their case; they contend in particular that their claims
are "civil" within the meaning of this provision in that the
interferences complained of affect their property, their lives and
their bodily integrity. The applicants also submit that the dangers
at issue are sufficiently serious to warrant their access to court.
The applicants vigorously contest the domestic authorities'

arguments according to which the potential risk of such transports is
significantly lower than that of nuclear power stations, since in the
applicants' view the appreciation of such risks is not an exact
science. If an accident occurred, the consequences would be

extraordinarily serious. The applicants submit that 98,5% of all train
accidents occur in the goods yards of a station, and only 1,5% of
accidents of good trains on the open rail.

Under Article 6 para. 1 of the Convention the applicants further
complain that the Federal Court uncritically took over expert opinions
prepared by the opposing party, even though the applicants criticised
these expert opinions for their blatant scientific errors.

2. Under Article 2 of the Convention the applicants submit that in
the domestic proceedings they have sufficiently substantiated that a
transport accident in Muttenz would directly threaten their lives. In
their view the authorities are obliged to enact all necessary statutory
provisions which protect life, and not to authorise any activities,
such as the transport of radioactive materials, which

disproportionately endanger this right.

3. Under Article 8 of the Convention the applicants complain that
the transport of nuclear waste with the ensuing dangers amounts to a
breach of their right to respect for their private and family life and
of their home.

4. Subsidiarily the applicants complain under Article 13 together
with Articles 2 and 8 of the Convention that they did not have an
effective remedy with locus standi at their disposal.

5. Under Article 14 of the Convention the applicants raise three
complaints. First, they complain that the Swiss authorities have
granted access to court to those persons who invoke economic grounds,
whereas the applicants, who invoke their civil and fundamental rights,
have not been granted access to court. Secondly, they complain of
discrimination in that persons in the vicinity of nuclear power
stations are treated differently from persons like them who live near
routes for transport of radioactive materials. Thirdly, they complain
of discrimination in that the Federal Court did not examine their
critical comments on the expert opinions prepared by the authorities.
THE LAW

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

applicants complain that they have been denied access to court in
respect of their complaints about the dangers emanating from the rail
transports of dangerous radioactive materials. The applicants also
complain under this provision that the Federal Court uncritically
accepted expert opinions prepared by the opposing party, even though
the applicants criticised these expert opinions for their blatant
scientific errors.

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..."

a) The Commission has first examined the applicants' complaint about
lack of access to court within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.

The Commission notes that the applicants are complaining of

interferences with their property, their lives and their bodily
integrity. In the Commission's opinion, an issue arises whether
Article 6 para. 1 (Art. 6-1) of the Convention is applicable on the
ground that the interferences complained of reached a level which would
imply that there was a genuine and serious dispute in respect of the
applicant's property right (see Eur. Court H.R., Zander judgment of 25
November 1993, Series A, no. 279-B, p. 40, para. 27). The Commission
need nevertheless not resolve this issue since this part of the
application is in any event inadmissible for the following reasons.
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.
The right of access, however, is not absolute, but may be subject to
limitations since the right by its very nature calls for regulation by
the State. Nonetheless the limitations applied must not restrict or
reduce the access left to the individual in such a way or to such an
extent that the very essence of the right would be impaired (see Eur.
Court H.R., Philis judgment of 27 August 1991, Series A no. 209, p. 20
et seq., para. 59).

In the present case, the Commission notes that the Federal Court
in last resort would have had full jurisdiction to examine the factual
and legal aspects of the applicants' complaints if they had met the
other conditions for filing such an appeal. However, the domestic
authorities refused to examine the applicants' complaints as the
applicants were not sufficiently affected within the meaning of Section
48 of the Federal Act on Administrative Procedure. Thus, the Federal
Court in its decision of 19 May 1995 found that for the individual
person living along the transport line the probability of radioactive
pollution was not significantly higher than the risk of such pollution
for the population in general.

In the Commission's opinion it does not appear unreasonable that
the Federal Court relied on such criteria when establishing the
applicants' locus standi. The Court clearly did not exclude that in
circumstances where an applicant could demonstrate an extraordinary and
concrete danger, he would be granted standing in such proceedings. It
cannot therefore be said that the limitations applied by the Federal
Court impaired the very essence of the right of access to court within
the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b) The applicants complain of the unfairness of the proceedings
before the Federal Court, in particular as regards the allegedly
incorrect expert opinions. The Commission notes that these proceedings
related to the issue whether the administrative authorities had been
right in not giving the applicants locus standi. The proceedings did
not, therefore, relate to the determination of the applicants' civil
rights and obligations within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. This part of the application is
therefore incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

In any event, even assuming that Article 6 para. 1 (Art. 6-1) of
the Convention was applicable, the Commission finds no indication that
the proceedings were unfairly conducted or that the applicants could
not sufficiently put forward their point of view, or adduce any
evidence which they regarded as pertinent.

It is true that the applicants also complain that the Federal
Court relied on allegedly incorrect expert opinions. However, the
Commission notes that the appreciation of evidence is primarily a
matter for regulation by national law, and, as a rule, it is for the
national courts to assess the evidence before them (see Eur. Court
H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,
para. 26).

In the present case, the Commission notes that the Federal Court
in its decision of 19 May 1995 duly considered the expert opinion
submitted by the applicants. It does not in the Commission's opinion
appear arbitrary if the Federal Court concluded that it need not
definitely resolve whether or not the expert opinions were correct
since the applicants themselves admitted that in the case of a
transport accident far less radiation was to be expected than in the
case of a serious nuclear power plant accident, and that, as a result,
the applicants were not granted standing in the proceedings.
This part of the application is, therefore, also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

2. Under Article 2 (Art. 2) of the Convention the applicants submit
that in the domestic proceedings they have sufficiently substantiated
that a transport accident in Muttenz would directly threaten their
lives. They complain that the authorities are obliged to enact all
necessary statutory provisions which protect life, and not to authorise
any activities, such as the transport of radioactive materials, which
disproportionately endanger this right.

Article 2 para. 1 (Art. 2-1) of the Convention provides in its
first sentence that "(e)veryone's right to life shall be protected by
law".

According to the Commission's case-law, this provision enjoins
a State to take steps to safeguard life which are appropriate to the
general situation (see No. 7154/75, Dec. 12.7.1978, D.R. 14 p. 32; No.
9348/81, Dec. 28.2.83, D.R. 32 p. 190; No. 16734/90, Dec. 2.9.91, D.R.
72 p. 236).

The Commission has satisfied itself that the Swiss authorities
have sufficiently examined the applicants' allegations. The Commission
notes the decision of the Federal Office for Energy Administration of
8 April 1992 according to which the transports were carried out in
conformity with national and international norms which protected the
security of the workers involved as well as of the population in the
vicinity and the integrity and density of the containers assured their
security even in the case of very serious accidents. The Federal Court
in its decision of 19 May 1995 recalled that even in the case of severe
strain only a limited amount of radioactivity could escape from these
containers.

In such circumstances, the Commission finds that the authorities
set up sufficient precautionary measures to comply with their
obligation to protect life under Article 2 (Art. 2) of the Convention.
As a result, the Commission cannot find that the Swiss

authorities were required under the Convention to go so far as to
provide for additional individual protection for the persons living
within the vicinity of the areas where the rail transports were
conducted (see No. 9348/91, loc. cit.)

It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

3. Under Article 8 (Art. 8) of the Convention the applicants
complain that the transport of nuclear waste with the ensuing dangers
amounts to a breach of their right to respect for their private and
family life and of their home.

Article 8 (Art. 8) of the Convention states, insofar as relevant:
"1. Everyone has the right to respect for his private and

family life (and) his home...

2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."

In the light of the above considerations in respect of Article
2 (Art. 2) of the Convention, it cannot be said that the domestic
authorities showed a lack of respect for the applicants' private and
family life and their home within the meaning of Article 8 (Art. 8) of
the Convention.

This part of the application is therefore also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

4. Subsidiarily the applicants complain under Article 13 (Art. 13)
of the Convention together with Articles 2 and 8 (Art. 2, 8) of the
Convention that they did not have an effective remedy with locus standi
at their disposal.

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

"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."

However, the Commission considers that the applicants have not
made out an arguable claim under Articles 2 and 8 (Art. 2, 8) of the
Convention (see Eur. Court H.R., Plattform "Ärzte für das Leben"
judgment of 21 June 1988, Series A no. 139, p. 11 et seq., paras. 27
et seq.).

This part of the application is therefore also manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

5. Under Article 14 (Art. 14) of the Convention the applicants
complain, first, that the authorities have granted access to court to
those persons who invoke economic grounds, whereas the applicants, who
invoke their civil and fundamental rights have not been granted access
to court. Secondly, they complain of discrimination in that persons
in the vicinity of nuclear power stations are treated differently from
persons like them who live near the routes for transport of radioactive
materials. Thirdly, they complain of discrimination in that the
Federal Court did not examine their critical comments on the expert
opinions prepared by the authorities.

Article 14 (Art. 14) of the Convention states:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."

The Commission need not resolve whether the applicants have

complied with the requirement under Article 26 (Art. 26) of the
Convention as to the exhaustion of domestic remedies in respect of
every complaint they are now raising.

In respect of the first complaint, namely that the authorities
have only granted access to court to those persons who invoke economic
grounds, the Commission finds that the applicants have only

insufficiently substantiated their allegations.

As regards their second complaint, namely of a difference of
treatment compared with persons living next to a nuclear power plant,
the Commission considers that the differences complained of in fact
related to essentially different factual circumstances (see Eur. Court
H. R., Belgian linguistic judgment of 23 July 1968, Series A no. 6,
p. 44 et seq., para. 7).

Finally, insofar as the applicants complain that the Federal
Court did not examine their critical comments on the expert opinions
prepared by the authorities, the Commission finds no issue under
Article 14 (Art. 14) of the Convention.

The remainder of the application is therefore also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Acting President

Commission of the Commission

(H.C. KRÜGER) (H. DANELIUS)
Decision information   •   DEFRITEN
Document : 30003/96
Date : 01. Juli 1996
Published : 01. Juli 1996
Source : Entscheide EGMR (Schweiz)
Status : 30003/96
Subject area : (Art. 6) Right to a fair trial (Art. 6-1) Access to court (Art. 6) Administrative proceedings (Art. 6-1)
Subject : L., M. AND R. v. SWITZERLAND


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