Balmer-Schafroth and Others v. Switzerland

Case No. 671996686876, 26 August 1997
Download Judgment: English French
Country: Switzerland
Region: Europe
Year: 1997
Court: European Court of Human Rights
Health Topics: Disasters and emergencies, Environmental health, Public safety
Human Rights: Right to due process/fair trial
Tags: Nuclear disaster, Nuclear radiation, Nuclear waste, Precautionary principle

Balmer-Schafroth (B) and nine other applicants lived in villages situated in a containment zone within a radius of four to five kilometers from a nuclear power station in operation since 1971. In March 1991 they had requested the federal council to refuse an indefinite extension of the operating license being sought for the station and to order its immediate and permanent closure, maintaining that (a) it did not meet current safety standards because of irremediable construction defects and (b) the risk of an accident occurring was greater than usual. Several expert opinions had been attached to the applicants’ request. They had also asked for further data to be obtained and certain provisional measures to be taken.

s decision, relying upon a number of expert reports, found the statutory requirements to be satisfied and that such power stations could be maintained and modernised so as to operate quite safely. It also held that the constitutional right to life would not be breached so long as appropriate technical and operating procedures were adopted to prevent a deliberate infringement and so long as these procedures could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations. No appeal lay against the grant of a licence for technical installations to be brought into service. The applicants complained about not having access to a tribunal and the procedure followed by the federal council, as well as the absence of an effective remedy in respect of violations of Arts 2 and 8.

The Commission found (16-12) a breach of Art 6(1)(guaranteeing a fair hearing by a tribunal) and (27-1) no separate issue arising under Art 13 (guaranteeing effective remedy). Switzerland objected that the consequences of the violations of which the applicants complained were too remote to affect them directly and personally. It also objected that they had not availed themselves of certain remedies which would have led to a ruling on their complaints by a tribunal.

[Adapted from INTERIGHTS summary, with permission]

The Court held:

(1) that the applicants could be regarded as victims since the federal council had declared admissible the objections which they wished to raise before a tribunal and the first objection should, therefore, be rejected;

(2) that, in view of holding (10), it was not necessary to rule on the second objection;

(3) that the applicants had opposed the extension of the operating licence because of risks for life and health and had at no stage claimed to have suffered any loss (economic or other) for which they intended to seek compensation;

(4) that the right on which they relied in substance before the federal council had been the right under Swiss law to have their physical integrity adequately protected from the risks entailed by the use of nuclear energy which was recognised in the legislation concerned and the constitution;

(5) that the fact that a decision such as the present one had to be based on technical data of great complexity did not in itself prevent Art 6 being applicable and the only purpose of the data was to consider whether the conditions for granting an extension had been met;

(6) that the federal council’s decision was more akin to a judicial act than a general policy decision inasmuch as it sought to review compliance with the statutory requirements;

(7) that, in the light of the foregoing 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;

(8) that, as the applicants had failed to establish a direct link between the operating conditions of the power station which were contested by them and their exposure through its operation to a danger that was not only serious but also specific and - above all - imminent, the effects on the population of the measures which the federal council could have ordered to be taken in the instant case remained hypothetical;

(9) that neither the dangers nor the remedies were thus established with a degree of probability that made the outcome of the proceedings directly decisive for the right relied on by the applicants;

(10) (12-8) that Art 6(1) was, therefore, not applicable in the instant case; and

(11) (12-8) that, in view of the previous finding, the same conclusion was reached with respect to Art 13.

Several judges dissented, arguing that the connection between the right at issue and access to the courts was not too tenuous to maintain an Article 6 claim. The dissenters also noted that "If there is a field in which blind trust cannot be placed in the executive, it is nuclear power, because reasons of State, the demands of government, the interests concerned and pressure from lobbyists are more pressing than in other spheres" (Page 16) and argued that the Federal Council could not be considered an independent and impartial tribunal.

[Adapted from INTERIGHTS summary, with permission]

"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." Page 12.

"Together with my colleagues in the minority, I would have preferred it to be the judgment of the European Court that caused international law for the protection of the individual to progress in this field by reinforcing the "precautionary principle" and full judicial remedies to protect the rights of individuals against the imprudence of authorities." Dissenting opinion, page 19

INTERIGHTS Comment: This is a very perplexing ruling which appears not only to be internally contradictory but which also has potentially harmful implications for efforts to secure compliance with environmental standards, something which the Court itself has recognized can be required by rights in the ECHR (see Lopez Ostra v Spain, (1996) 10 Interights Bulletin 31). The inconsistency stems from the willingness to accept that the applicants are victims because of the admissibility of their objections in the administrative procedure but the refusal then to acknowledge that their rights were in any way being determined by the grant of the operating license. It does not seem tenable to suggest that, on the one hand they were persons directly affected by the act or omission in issue but then to maintain that there was no determination because they had not shown that the operation of the power station had ‘exposed them personally to a danger that was not only serious but also specific and, above all, imminent.’  If there was a lack of imminence it might have been more appropriate to deny that they were even victims; cf the use of this approach of the UNHRC as regards the deployment of cruise missiles (E W et al v The Netherlands, (1994) 8 Interights Bulletin 46), military strategy (De Groot v The Netherlands, (1995) 9 Interights Bulletin 96) and nuclear tests (Bordes, Tauira and Temeharo v France, (1996) 10 Interights Bulletin 158). However, although the Court expressly declined to accept France’s invitation to take this line it then seemed to do exactly that in an indirect way by holding that there was no determination; thus, in finding that the applicants could not show harmful effects of the impugned measure, it was really saying that they had no significant interest. Yet this really misses the point; if the applicants had an interest - albeit one only derived from the potential impact of the power station rather than the imminent risk of death - which justified an objection, then this was being determined by the council when it concluded that it was unfounded and it is irrelevant that only a very minor element of a right was at stake. Certainly it seems unlikely that, if there were a contract for the payment of GBP 1 million and GBP 1 was outstanding, a refusal to order its payment would not be regarded as a determination. Furthermore the majority’s view that the council’s decision was more akin to a judicial act than a general policy decision points more to a determination of a dispute occurring, even if there is no real reason to see the council as having a judicial character. Judges Pettiti, Gölcüklü, Walsh, Russo, Valticos, Lopes Rocha and Jambrek all dissented, pointing out that the likelihood of risk and damage was sufficient for Art 6 to be applicable; for them the existence of a link was sufficient. They felt that there was effectively a confusion between the policy choice over the use of nuclear power and its implementation in specific decisions and that the latter could not escape judicial scrutiny. This is to some extent straying in to the position of Judge De Meyer in Rolf Gustafson v Sweden, supra, that a right need not be recognised in domestic law for Art 6 to be applicable and this is probably unnecessary given the recognised status of objector enjoyed by the applicants. Judge Foighel in his dissent did, however, seem more concerned with what ought to be the position in domestic law than what was; the fact that there were conditions and obligations laid down by law meant that judicial review to secure compliance should have been available. The other dissenting judges were also well aware of the need for environmental dangers to be properly regulated and made specific reference to a wide range of international standards. They also underlined how procedural questions determine substantive ones. Furthermore they rightly condemned the Court’s assumption that failure on the Art 6 claim necessarily meant failure on the Art 13 one. In this connection the decision in Klass v Federal Republic of Germany, Ser A No. 28 was usefully invoked; just as the provision of an effective remedy has to take into account the difficulty of knowing whether one is subject to surveillance so it has to be recognised that the right to life requires that potential as much as actual risks be addressed where environmental hazards are involved. This ruling undoubtedly makes it more difficult to insist on preventive action where a risk to the environment is still at the stage of only being apprehended.
View full summary and print   |   Download summary as PDF