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.

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:

"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."

"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:

"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. "

"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)