Balmer-Schafroth and Others v. Switzerland (67\1996\686\876) 26 August 1997: –Extension by Swiss Federal Council of licence to operate nuclear power station- Right to have physical integrity adequately protected from risks entailed by use of nuclear energy- Link between the operating conditions of the power station and right to protection of their physical integrity

Switzerland – extension by Swiss Federal Council of licence to operate nuclear power station (Federal Act on the Peaceful Use of Nuclear Energy)

II. ARTICLE 6 OF THE CONVENTION

B. Applicability

Right on which applicants had relied in substance - to have their physical integrity adequately protected from risks entailed by use of nuclear energy - was recognised in Swiss law.

Inasmuch as it sought to review whether statutory requirements had been complied with, Federal Council’s decision had been more akin to a judicial act than to a general policy decision.

No doubt that the dispute had been genuine and serious.

Applicants had not established a direct link between the operating conditions of the power station and their right to protection of their physical integrity, as they had failed to show that they were personally exposed to a serious, specific and imminent danger - effects of measures which Federal Council could have ordered in the instant case hypothetical - neither dangers nor remedies had been established with a degree of probability that would have made outcome of proceedings directly decisive for right relied on by applicants - connection between that right and Federal Council’s decision too tenuous and remote.

Conclusion: Article 6 not applicable (twelve votes to eight).

AS TO THE FACTS

I. The circumstances of the case

7. The applicants live in the villages of Wilteroltigen, Deltigen and Gümmenen, situated in containment zone no. 1 (Alarmzone 1) within a radius of between four and five kilometres from the nuclear power station at Mühleberg (Canton of Berne). They either own or rent their homes.

A. Application for an operating licence

8. On 9 November 1990 the company which had operated the power station since 1971, the Bernische Kraftwerke AG ("the operating company"), applied to the Swiss Federal Council (the Government) for an extension of its operating licence for an indefinite period and for permission to increase production by 10%. The application was published in the Official Gazette of 4 December 1990 together with a notice inviting persons satisfying the requirements laid down by section 48 of the Federal Administrative Proceedings Act (see paragraph 15 below) to file an objection.

9. More than 28,000 objections in all were sent to the Federal Energy Office, 21,000 of which came from Germany and Austria.

In their objection of 4 March 1991, to which several expert opinions were attached, the applicants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power station. Relying in particular on section 5(1) and (the former) section 10(1) of the Nuclear Energy Act (see paragraph 12 below), they maintained that the power station did not meet current safety standards on account of serious and irremediable construction defects and that, owing to its condition, the risk of an accident occurring was greater than usual. In addition, they asked the authorities to obtain further data and in the meantime take certain provisional measures. With regard to the fact that under the applicable law the Federal Council would consider the application for an operating licence as an authority of both first and last instance, they pointed out that its decision could give rise to an application based on Article 6 § 1 of the Convention since it affected their civil rights.

10. On 3 September 1991 and 23 June 1992 the Federal Department of Transport, Communications and Energy rejected the requests for interim measures and for gathering the additional data.

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION THAT THE APPLICANTS WERE NOT VICTIMS

24. In their first preliminary objection the Government argued that the applicants were not victims, because the consequences of the violations they complained of were too remote to affect them directly and personally.

25. The Court notes that on 29 February 1996, following the Commission's decision of 4 December 1995 whereby it declared inadmissible the application in the case of Noël Narvii Tauira and Others v. France (no. 28204/95, Decisions and Reports no. 83-A, pp. 112 et seq.), the Government (unsuccessfully) invited the Commission to apply Article 29 of the Convention in the present case on the ground that the applicants were not victims. The Court therefore has jurisdiction to entertain this preliminary objection.

26. Under the Court's case-law, for the purposes of Article 25 the word "victim" means the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice, which is relevant only in the context of Article 50 (see, among other authorities, the Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. ..., § 36).

In the instant case, the fact that the Federal Council declared admissible the objections the applicants wish to raise before a tribunal (see paragraph 11 above) justifies regarding them as victims. The first preliminary objection must therefore be dismissed.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

27. The applicants alleged a violation of Article 6 § 1 of the Convention, which provides:

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

As only the Federal Council had jurisdiction to consider the application for an extension of the operating licence for Mühleberg power station, the applicants had not been able to secure a ruling by a tribunal on their objections to the extension.

The Commission agreed in substance with that submission, whereas the Government contested it.

A. The Government's preliminary objection of failure to exhaust domestic remedies

28. The Government raised a preliminary objection of failure to exhaust domestic remedies. The applicants had not availed themselves of certain remedies which would have led to a ruling on their complaints by a tribunal in accordance with Article 6 § 1.

29. In view of its conclusion on the applicability of Article 6 § 1 (see paragraph 40 below), the Court does not consider it necessary to decide this issue.

B. Applicability of Article 6 § 1

30. The Government submitted that Article 6 § 1 was not applicable in the instant case. Inasmuch as the applicants' complaints were that their physical integrity was in jeopardy, they did not concern "civil rights and obligations" within the meaning of that provision.

31. The applicants pointed out that they had been parties in the proceedings before the Federal Council and as such had enjoyed the same rights as the operating company. The company's economic rights had been at stake in those proceedings, which therefore clearly came within the ambit of Article 6 § 1.

32. Under the Court's case-law, for Article 6 § 1 in its "civil" limb to be applicable, there must be a "dispute" (contestation in the French text) 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. 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 v. Belgium, 23 June 1981, Series A no. 43, p. 21, § 47; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B, p. 46, § 56; and Masson and Van Zon v. the Netherlands, 28 September 1995, Series A no. 327-A, p. 17, § 44).

33. The Court notes in the first place that the objection of 4 March 1991 shows that the applicants opposed the application for an extension of the operating licence because of the risks which they maintained such an extension entailed for the life and health of the local population, to which they belonged. At no stage in the proceedings had they claimed to have suffered any loss, economic or other, for which they intended to seek compensation (see paragraph 9 above). The right on which the applicants relied in substance before the Federal Council was the right to have their physical integrity adequately protected from the risks entailed by the use of nuclear energy.

34. The Court considers that this right is recognised in Swiss law, as is apparent in particular from section 5(1) of the Nuclear Energy Act - to which both the applicants and the Federal Council expressly referred - and from the constitutional right to life, on which the Federal Council commented in its decision (see paragraphs 9, 11 and 12 above).

35. The Government, however, referring to the Van Marle and Others v. the Netherlands judgment of 26 June 1986 (Series A no. 101), maintained that the right concerned had not been the subject of a "genuine and serious dispute", as it was not reviewable by the courts. Firstly, it was clear from the Federal Council's decision that what was in issue was scarcely of a legal nature but was, on the other hand, highly technical. Secondly, even supposing that the courts had the necessary knowledge and time to hear the case, the moral and political responsibility for the decision nonetheless lay with the political authorities alone as, for example, had also been the case with the acceptance of the nuclear moratorium by the Swiss people and legislature on 23 September 1990. That was why the proceedings in the instant case had taken place before the Federal Council. If, on the other hand, every decision capable of affecting a person's pecuniary interests had, in the last instance, to be taken by a court, democratic political debate would become meaningless.

36. The applicants argued that judicial evaluation of technical issues was part of the courts' ordinary daily work in cases concerning buildings, the environment or sites where hazardous materials were produced. In such cases, it was the court's duty to seek the assistance of an impartial expert to assess whether a particular risk was inevitable or, on the contrary, could be avoided or at least lessened by appropriate technical measures.

37. The Court notes that the objection of 4 March 1991 was directed at the application for an extension of the licence to operate Mühleberg power station. Although, as the Government indicated, the decision to be taken necessarily had to be based on technical data of great complexity - a fact which does not in itself prevent Article 6 being applicable - the only purpose of the data was to enable the Federal Council to verify whether the conditions laid down by law for the grant of an extension had been met.

That is indeed how the Federal Council proceeded. Thus in point 2 of its decision of 14 December 1992, in which it considered the conditions for the grant of the licence, the Federal Council recapitulated the factors which, under section 5 of the Nuclear Energy Act (see paragraph 12 above), justified refusing an operating licence or granting it on terms; it went on to add that an applicant who satisfied all the statutory requirements was entitled to an operating licence (see paragraph 11 above). In point 4 of its decision, relating to the continued operation of the power station, it said that it would simultaneously consider the merits of the objections, including the demands made in them, and ascertain whether the substantive conditions for the grant of an extension had been satisfied. Inasmuch as it sought to review whether the statutory requirements had been complied with, the Federal Council's decision was therefore more akin to a judicial act than to a general policy decision such as the nuclear moratorium in 1990.

38. Moreover, in the light of the above considerations and the fact that the Federal Council declared the applicants' objection admissible, there can be no doubt that the dispute was genuine and serious.

39. It therefore remains to be determined whether the outcome of the proceedings in issue was directly decisive for the right asserted by the applicants and in particular whether the link between the Federal Council's decision and the applicants' right to adequate protection of their physical integrity was sufficiently close to bring Article 6 § 1 into play, and was not too tenuous or remote.

40. It will be recalled that the applicants asked the Federal Council to refuse to extend the operating licence on the ground that, in their submission, Mühleberg power station had serious and irremediable construction defects, it did not satisfy current safety standards and its condition entailed a greater than usual risk of accident (see paragraph 9 above). They endeavoured to prove the existence of the alleged technical deficiencies and the need to lessen the resulting danger to the population and the environment in general by every available means. However, they did not for all that establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they failed to show that the operation of Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures which the Federal Council could have ordered to be taken in the instant case therefore remained hypothetical. Consequently, neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case-law for the right relied on by the applicants. In the Court's view, the connection between the Federal Council's decision and the right invoked by the applicants was too tenuous and remote.

Article 6 § 1 is accordingly not applicable in the instant case.

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