Region: Europe
Year: 1997
Court: European Court of Human Rights
Health Topics: Disasters and emergencies, Environmental health, Public safety
Human Rights: Right to due process/fair trial
Tags: Nuclear disaster, Nuclear radiation, Nuclear waste, Precautionary principle
Balmer-Schafroth (B) and nine other applicants lived in villages situated in a containment zone within a radius of four to five kilometers from a nuclear power station in operation since 1971. In March 1991 they had requested the federal council to refuse an indefinite extension of the operating license being sought for the station and to order its immediate and permanent closure, maintaining that (a) it did not meet current safety standards because of irremediable construction defects and (b) the risk of an accident occurring was greater than usual. Several expert opinions had been attached to the applicants’ request. They had also asked for further data to be obtained and certain provisional measures to be taken.
s decision, relying upon a number of expert reports, found the statutory requirements to be satisfied and that such power stations could be maintained and modernised so as to operate quite safely. It also held that the constitutional right to life would not be breached so long as appropriate technical and operating procedures were adopted to prevent a deliberate infringement and so long as these procedures could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations. No appeal lay against the grant of a licence for technical installations to be brought into service. The applicants complained about not having access to a tribunal and the procedure followed by the federal council, as well as the absence of an effective remedy in respect of violations of Arts 2 and 8.
The Commission found (16-12) a breach of Art 6(1)(guaranteeing a fair hearing by a tribunal) and (27-1) no separate issue arising under Art 13 (guaranteeing effective remedy). Switzerland objected that the consequences of the violations of which the applicants complained were too remote to affect them directly and personally. It also objected that they had not availed themselves of certain remedies which would have led to a ruling on their complaints by a tribunal.
[Adapted from INTERIGHTS summary, with permission]
The Court held:
(1) that the applicants could be regarded as victims since the federal council had declared admissible the objections which they wished to raise before a tribunal and the first objection should, therefore, be rejected;
(2) that, in view of holding (10), it was not necessary to rule on the second objection;
(3) that the applicants had opposed the extension of the operating licence because of risks for life and health and had at no stage claimed to have suffered any loss (economic or other) for which they intended to seek compensation;
(4) that the right on which they relied in substance before the federal council had been the right under Swiss law to have their physical integrity adequately protected from the risks entailed by the use of nuclear energy which was recognised in the legislation concerned and the constitution;
(5) that the fact that a decision such as the present one had to be based on technical data of great complexity did not in itself prevent Art 6 being applicable and the only purpose of the data was to consider whether the conditions for granting an extension had been met;
(6) that the federal council’s decision was more akin to a judicial act than a general policy decision inasmuch as it sought to review compliance with the statutory requirements;
(7) that, in the light of the foregoing considerations and the fact that the federal council declared the applicants’ objection admissible, there can be no doubt that the dispute was genuine and serious;
(8) that, as the applicants had failed to establish a direct link between the operating conditions of the power station which were contested by them and their exposure through its operation to a danger that was not only serious but also specific and - above all - imminent, the effects on the population of the measures which the federal council could have ordered to be taken in the instant case remained hypothetical;
(9) that neither the dangers nor the remedies were thus established with a degree of probability that made the outcome of the proceedings directly decisive for the right relied on by the applicants;
(10) (12-8) that Art 6(1) was, therefore, not applicable in the instant case; and
(11) (12-8) that, in view of the previous finding, the same conclusion was reached with respect to Art 13.
Several judges dissented, arguing that the connection between the right at issue and access to the courts was not too tenuous to maintain an Article 6 claim. The dissenters also noted that "If there is a field in which blind trust cannot be placed in the executive, it is nuclear power, because reasons of State, the demands of government, the interests concerned and pressure from lobbyists are more pressing than in other spheres" (Page 16) and argued that the Federal Council could not be considered an independent and impartial tribunal.
[Adapted from INTERIGHTS summary, with permission]
"It will be recalled that the applicants asked the Federal Council to refuse to extend the operating licence on the ground that, in their submission, Mühleberg power station had serious and irremediable construction defects, it did not satisfy current safety standards and its condition entailed a greater than usual risk of accident (see paragraph 9 above). They endeavoured to prove the existence of the alleged technical deficiencies and the need to lessen the resulting danger to the population and the environment in general by every available means. However, they did not for all that establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they failed to show that the operation of Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures which the Federal Council could have ordered to be taken in the instant case therefore remained hypothetical. Consequently, neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case-law for the right relied on by the applicants. In the Court's view, the connection between the Federal Council's decision and the right invoked by the applicants was too tenuous and remote.
Article 6 § 1 is accordingly not applicable in the instant case." Page 12.
"Together with my colleagues in the minority, I would have preferred it to be the judgment of the European Court that caused international law for the protection of the individual to progress in this field by reinforcing the "precautionary principle" and full judicial remedies to protect the rights of individuals against the imprudence of authorities." Dissenting opinion, page 19