22110/93

 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:

"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."

"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:

"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."

"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