JEHL-DOBERER v. SWITZERLAND
AS TO THE ADMISSIBILITY OF
Application No. 17667/91
by Guy Jehl-Doberer
against Switzerland
The European Commission of Human Rights (First Chamber) sitting
in private on 1 September 1993, the following members being present:
MM. A. WEITZEL, President
S. TRECHSEL
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mrs. J. LIDDY
Mr. M.P. PELLONPÄÄ
Mrs. M.F. BUQUICCHIO, 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 21 December 1990
by Guy Jehl-Doberer against Switzerland and registered on 14 January
1991 under file No. 17667/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
Facts
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, a French citizen born in 1939, is a translator
residing in Basel. Before the Commission he is represented by Mr. R.
Zweidler, a lawyer practising in Basel.
I.
Drinking water is fluoridated in Basel. The basis herefore is
a decree of 1959 of the Greater Council (Grosser Rat) which is the
legislative body of the Canton of Basel-Stadt. The decision, which
aims at combating dental caries, states:
<Translation>
"The Greater Council of the Canton of Basel-Stadt approves,
upon recommendation of its commission, for the installation
of a fluoridation plant a credit of maximum 170'000 SFr at
the State's expense.
At present the waterworks are reimbursed for operation and
maintenance of the fluoridation installations to the amount of
approximately 100,000.- SFr out of the general State budget.
The approval of the credit is tied to the following conditions:
1. Dosage. during the months of June, July and August: 0,8
mg/l; during the remaining nine months: 1 mg/l. During heat
periods outside the three months mentioned the waterworks are
empowered to reduce the dosage to 0,8 mg/l.
2. Technical control. The fluor content of the drinking water
must be regularly controlled not only where fluor is added to the
water, but also at different points of the water network.
3. Scientific assessment. In the coming years the consequences
and results of water fluoridation must be compiled and
scientifically examined by a competent body.
This decision must be published; it is subject to a referendum."
<German>
"Der Grosse Rat des Kantons Basel-Stadt, auf Antrag seiner
Kommission, bewilligt für die Einrichtung der
Fluoridierungsanlagen einen Kredit von maximal Fr. 170,000.- zu
Lasten der allgemeinen Staatsrechnung.
Dem Wasserwerk wird der Aufwand für den Betrieb und Unterhalt der
Fluoridierungsanlagen von zurzeit rund Fr. 100,000.- jährlich aus
den allgemeinen Staatsmitteln vergütet.
Die Kreditbewilligung ist an folgende Auflagen gebunden:
1. Dosierung. Während der Monate Juni, Juli und August: 0,8
mg/l; während der übrigen 9 Monate: 1 mg/l. Das Wasserwerk wird
ermächtigt, bei Hitzeperioden ausserhalb der erwähnten drei
Sommermonate die Dosierung auf 0,8 mg/l zu senken.
2. Technische Kontrolle. Der Fluorgehalt des Trinkwassers ist
nicht nur an den Fluorbeimischungsstellen, sondern auch an
verschiedenen Punkten des Leitungsnetzes regelmässig zu
kontrollieren.
3. Wissenschaftliche Auswertung. In den kommenden Jahren sind
die Auswirkungen und Erfolge der Wasserfluoridierung durch ein
entsprechendes Gremium zusammenzufassen und wissenschaftlich
verwerten zu lassen.
Dieser Beschluss ist zu publizieren; er unterliegt dem
Referendum."
II.
In 1987 the applicant wrote to the Basel Industrial Works,
requesting fluoride-free drinking water free. The Industrial Works
refused this on the ground that it was not its duty to adapt the
quality of water to the wishes of individual consumers.
The applicant's complaint against this refusal was dismissed on
20 November 1987 by the Construction Department (Baudepartement), his
subsequent appeal by the Council of State (Regierungsrat), and his
further appeal by the Administrative Court (Verwaltungsgericht) of the
Canton of Basel-Stadt.
The applicant's public law appeal (staatsrechtliche Beschwerde)
was dismissed by the Federal Court on 29 June 1990.
In its decision the Court noted that the measure complained of,
the adding of natriumsilokofluoride to drinking water, was compulsory,
constituting an interference with the applicant's constitutional right
to personal liberty. It further found that the decree of the Greater
Council of the Canton of Basel-Stadt constituted a law which had been
published and sufficed as a legal basis for the measure complained of.
The measure furthermore served public interest in that it prevented
dental caries.
The Court further found that according to the present state of
knowledge it could not clearly be said that the fluoridation of water
was unsuitable to prevent caries; the experiences of the Canton of
Basel-Stadt rather demonstrated the opposite. The Court continued:
<Translation>
"It is true that the fluoridation of drinking water amounts to
an interference with personal liberty. However, in relation to
the intended aim - the protection of popular health through
prevention of dental caries - the measure appears adequate and
must be accepted by the individual citizen. ... Addition to the
water is technically controlled, the consequences and results are
supervised and scientifically examined. Furthermore, compared
with the damaging consequences of other installations of the
State (such as aeroplane and street noise, air pollution) which
the citizen can equally not avoid, the fluoridation of drinking
water does not constitute a particularly severe interference.
The experiences gathered in Basel-Stadt since the introduction
of the fluoridation of drinking water do not militate against
continuation of the measure; rather, they let the measure appear
proportionate and justified. "
<German>
"Zwar stellt die Fluoridierung des Trinkwassers einen Eingriff
in die persönliche Freiheit dar, doch erscheint sie im Verhältnis
zum angestrebten Ziel - Schutz der Volksgesundheit durch Prophy-
laxe gegen die Zahnkaries - als angemessene Massnahmem, die vom
einzelnen Bürger hinzunehmen ist. ... Die Beimischung wird tech-
nisch kontrolliert, die Auswirkungen und Erfolge werden überwacht
und wissenschaftlich ausgewertet. Ausserdem handelt es sich bei
der Trinkwasserfluoridierung im Vergleich zu den schädlichen
Folgen öffentlicher, vom Staat getragener Werke (wie Flug- und
Strassenverkehrslärm, Luftverschmutzung), denen der Bürger eben-
falls nicht auweichen kann, um einen nicht besonders schwerwie-
genden Eingriff. Die seit der Einführung der Trinkwasserfluori-
dierung in Basel-Stadt gesammelten Erfahrungen sprechen nicht
gegen die Weiterführung der Massnahme, sondern lassen diese als
verhältnismässig und gerechtfertigt erscheinen."
COMPLAINTS
The applicant complains that the fluoridation of drinking water
in Basel breaches his right to respect for his private life within the
meaning of Article 8 of the Convention.
The applicant submits that the legal basis was not sufficiently
accessible or precise. For instance, the decision of the Greater
Council did not state that natriumsilokofluoride was actually added.
The applicant points out that the fluoridation of water cannot
be compared with the adding of chloride which is a treatment intended
to make it drinkable; rather, fluoridation is a "treatment" of the
citizen. The applicant submits that the adequacy of fluoridation is
scientifically disputed; thus, there is a suspicion that, in the long
term, it can cause damages such as Down's syndrome (Mongoloismus) and
cancer. In the applicant's view the measure is unnecessary in view of
various other alternatives, such as fluor tablets, the fluoridation of
milk or salt, tooth paste etc.
The applicant recalls that Basel-Stadt is the only Swiss canton
which fluoridates water. While according to statistics of 1987 water
was also fluoridated in then Czechoslovakia (for 3,5 million persons),
Finland (for 74'000 persons), Ireland (for 2,3 million persons) and the
United Kingdom (for 5,5 million persons), it had been stopped in the
Netherlands and in two Austrian Federal Provinces. The Federal
Republic of Germany has also not introduced it.
The applicant submits that in view of the importance of the right
at issue and the severity of the interference the measure appears
unjustified.
Considerations
THE LAW
The applicant complains that the fluoridation of drinking water
in the Canton of Basel-Stadt amounts to a breach of his right to
respect for private life as enshrined in Article 8 (Art. 8) of the
Convention. This provision states:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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."
The Commission recalls its case-law according to which even minor
medical treatment, as long as it is compulsory, constitutes an
interference with a person's right to respect for private life, though
the measure may be considered necessary in a democratic society where
it serves the aim of the protection of health within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention (see No. 10435/83, dec.
10.12.84, D.R. 40 p. 251 with further references).
In the present case, it is true that in the Canton of Basel-Stadt
fluoride is added to drinking water in order to prevent dental caries.
However, in the Commission's opinion, this situation differs from that
of compulsory medical treatment. Thus, in the Canton of Basel-Stadt
drinking water is provided as a general service to the population.
The question arises therefore whether there has at all been an
interference with the applicant's rights under Article 8 (Art. 8) of
the Convention.
The Commission need nevertheless not examine this issue since any
interference with the applicant's rights would in any event be
justified within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
The Commission considers that the legal basis for the measure
complained of was a decree enacted in 1959 of the Greater Council which
is the legislative body of the Canton of Basel-Stadt. The Commission
notes the Federal Court's decision of 29 June 1990 according to which
the decree at issue constitutes a law. The Commission further
considers that the terms of this decree, which was published, were
sufficiently precise and accessible for the applicant. Insofar as the
applicant submits that it does not transpire from the decree that
natriumsilikofluoride is added, he has not shown that the latter is not
merely a different form of, but in fact differs in substance from, what
is generally understood, and was in fact understood by the Federal
Court, as being fluoride.
The measure complained of would therefore have been "in
accordance with the law" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention.
The Commission further accepts that the fluoridation of drinking
water aims at preventing dental caries and serves "the protection of
health" within the meaning of Article 8 para. 2 (Art. 8-2) of the
Convention.
Finally, the Commission recalls that the requirement that an
interference must be "necessary in a democratic society" within the
meaning of Article 8 para. 2 (Art. 8-2) of the Convention implies that
the interference corresponds to a pressing social need and that it is
proportionate to the legitimate aim pursued. In determining whether
an interference is "necessary in a democratic society" the Convention
organs must also take into account that a margin of appreciation is
left to the Contracting States (see Eur. Court H.R., Olsson judgment
of 24 March 1988, Series A no. 130, p. 31 et seq., para. 67). Indeed,
a measure for the protection of health may still be considered
"necessary in a democratic society" within the meaning of Article 8
(Art. 8) of the Convention even if it is no longer employed by other
European States (see No. 10435/83, loc. cit.).
It is true that in the applicant's submissions the Canton of
Basel-Stadt is the only Canton in Switzerland which fluorides water,
and that the Federal Republic of Germany, the Netherlands and other
countries also refrain from the measure. On the other hand, the
applicant himself has pointed out various European States in which
fluoride is added to water.
The Commission further observes that the national authorities,
namely the Federal Court in its decision of 29 June 1990, carefully
weighed the competing interests at stake. Thus, the Federal Court
considered that the measure was not particularly severe and appeared
adequate in relation to the intended aim, which is to protect popular
health. The Federal Court found in particular that it was not
scientifically established that the fluoridation of water was
unsuitable to prevent dental caries and that the experiences of the
Canton of Basel-Stadt demonstrated the opposite. Insofar as the
applicant suspects that fluoridation may in the long term have
detrimental consequences, the Commission, as the Federal Court before
it, attaches particular importance to para. 3 of the Decree of 1959
according to which the consequences and results of the fluoridation of
drinking water are supervised and scientifically examined.
It cannot therefore be said that the decision of the Swiss
authorities went beyond the margin of appreciation left to the national
authorities.
Thus, even assuming that there had been an interference with the
applicant's rights under Article 8 para. 1 (Art. 8-1) of the
Convention, the interference with the applicant's right to respect for
private life could nevertheless reasonably be considered "necessary in
a democratic society".
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Order
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)