30003/96

 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:

"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."

"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)