BALMER-SCHAFROTH AND NINE OTHERS v. SWITZERLAND

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.

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.

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:

<Translation>

"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."

<Original>

"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:

<Translation>

"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."

<Original>

"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.