CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 février 2024

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SWITZERLAND (Application no. 4976/20)   JUDGMENT   Art 6 § 1 (civil) • Access to court • Reasonable time • Asbestos-related damages claim time-barred by virtue of the domestic courts’ determination of the starting point of the ten-year absolute limitation period from the moment of the (end of the) harmful act, irrespective of when the claimant became aware of the harm caused • In calculating a limitation period, the scientifically proven impossibility for a person to know that he/she suffers from a certain illness to be taken into account • Long latency periods between asbestos exposure and manifestation of asbestos-caused mesothelioma • In exceptional case circumstances pertaining to victims of asbestos exposure, manner of determining the dies a quo in respect of the running of the absolute limitation period, restricted applicants’ right to a court to the extent its very essence was impaired • Margin of appreciation overstepped • No reason to depart from Court’s reasoning in Howald Moor and Others v. Switzerland • Excessive length of proceedings before the Federal Court on account of their suspension for over four and a half years   Prepared by the Registry. Does not bind the Court.   STRASBOURG 13 February 2024   FINAL   13/05/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Jann-Zwicker and Jann v. Switzerland, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova , President ,   Jolien Schukking,   Yonko Grozev,   Peeter Roosma,   Ioannis Ktistakis,   Andreas Zünd,   Oddný Mjöll Arnardóttir , judges , and Milan Blaško, Section Registrar, Having regard to: the application (no.   4976/20) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Swiss nationals, Ms Regula Jann-Zwicker and Mr Gregor Jann (“the applicants”), on 14 January 2020; the decision to give notice to the Swiss Government (“the Government”) of the complaints concerning access to a court and the length of the proceedings and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 23 January 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the applicants’ complaints under Article   6   §   1 of the Convention about an alleged breach of their right of access to a court on account of the manner in which the beginning of the ten-year absolute limitation period in respect of asbestos-related claims for damages had been determined by the domestic courts. It also concerns the length of the proceedings at issue. THE FACTS 2.     The applicants were born in 1948 and 1983, respectively; they live in Thalwil and Zürich, respectively. They were represented by Mr M. Hablützel, a lawyer practising in Zürich. 3.     The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice. 4.     The facts of the case may be summarised as follows.         BACKGROUND OF THE CASE 5 .     The applicants are, respectively, the widow and son of Marcel Jann, who was born in 1953. From 1961 until 1972 Marcel Jann lived with his parents in Niederurnen in a house owned by and rented from a company, Eternit AG (hereinafter “Eternit”), in the immediate vicinity of Eternit’s factory grounds, where fibrous asbestos minerals were processed into asbestos cement panels. According to his own statements, Marcel Jann had frequently been exposed to asbestos from the Eternit factory at that time in several ways. Firstly, the dust emissions from the factory had regularly entered through his open bedroom windows. Secondly, as a child, Marcel Jann had often played on and around panels and pipes used by the Eternit factory. Furthermore, he had regularly watched the unloading of the asbestos bags at the railway station. After moving away from Niederurnen in 1972 at the age of 19 – again according to his own statements – he had never again been in contact with asbestos. 6.     A general ban on asbestos was introduced in Switzerland in 1989 (see   Howald Moor and Others v. Switzerland , nos. 52067/10 and 41072/11, § 9, 11 March 2014). 7 .     In the autumn of 2004 Marcel Jann was diagnosed with malignant pleural mesothelioma (pleural cancer) that was presumed to have been induced by exposure to asbestos. He died from the illness on 30 October 2006 at the age of 53. 8 .     In July 2006 (that is, prior to his death) Marcel Jann expressed, in written form, his wish that his rights in respect of his asbestos-caused disease be upheld and that his claims and those of his heirs be enforced – even after his death.       PROCEEDINGS BEFORE THE DOMESTIC COURTS    Criminal proceedings initiated by Marcel Jann before his death 9 .     On 18 September 2006 Marcel Jann lodged a criminal complaint alleging grievous bodily harm with the investigating authority ( Verhöramt ) of the Canton of Glarus. 10.     On 9 October 2006, after undertaking certain initial investigative measures, the investigating authority decided not to initiate an investigation. 11.     On 12 September 2007 the Glarus Cantonal Court ( Kantonsgericht ) upheld that decision. 12 .     On 11 August 2008 the Federal Court ( Bundesgericht ) dismissed an appeal against that decision.    Mediation proceedings initiated by the applicants after Marcel Jann’s death 13 .     On 23 March 2009 the applicants lodged an application with the mediator’s office ( Vermittleramt ) of the Canton of Glarus of the case. A   hearing was held on 3   June 2009, but no agreement could be found.    Civil proceedings initiated by the applicants after Marcel Jann’s death      Before the Cantonal Court 14 .     On 16 July 2009 the applicants, as Marcel Jann’s legal heirs, brought an action in the Glarus Cantonal Court against the following counterparties (the four defendants): a) Eternit (Schweiz) AG, as the alleged legal successor of the company (Eternit AG, see paragraph 5 above) that had operated the Niederurnen factory and had owned the house in which Marcel Jann had lived during the period in question; b) the two sons (Stephan and   Thomas Schmidheiny) of Eternit’s previous owner (Max Schmidheiny), who had both held senior positions in Eternit in the 1970s and 1980s; and c) Swiss Federal Railways ( Schweizerische Bundesbahnen , SBB). Their action encompassed contractual and non-contractual claims for damages that cited several grounds for liability – namely, liability arising from land ownership ( Haftung aus Grundeigentum ), from a rental contract ( Haftung aus Mietvertrag ), from ownership of a factory ( Werkeigentümerhaftung ), from tort ( Haftung aus unerlaubter Handlung oder Unterlassung ) and from the ownership of a business ( Geschäftsherrenhaftung ). They sought 110,000 Swiss francs (CHF), plus interest, in compensation for the emotional distress suffered by Marcel Jann. 15 .     The applicants argued that neither their contractual nor extra-contractual claims had become time-barred. In respect of contractual liability they argued that the limitation period provided by law began to run from the moment that the claim became due (which was when the damage occurred) – that is, (in the case in question) when Marcel Jann had died in October 2006 (see paragraph 7 above). In respect of non-contractual liability they argued that both the one-year relative limitation period (that is, the period that started to run from the moment of becoming aware of the damage in question and the identity of the person liable for that damage) and the ten-year absolute limitation period (that is, the length of time after which the matter in question is always statute-barred) had not yet elapsed. While the criminal proceedings had been ongoing, the beginning of the relative limitation period had been put off until the final judicial decision had been delivered in August 2008 (see paragraphs 9-12 above). Likewise, the beginning of the absolute limitation period had only begun to run with the commission of the “harmful act” ( schädigende Handlung ), which was to be interpreted as the point in time at which the harm (that is to say damage) had first become manifest. Lastly, the limitation period in respect of omissions ( Unterlassung – that is, a failure to act) had begun to run at the last possible moment at which the defendants could have acted to prevent or mitigate any damage – which in Marcel Jann’s case had been in the early 2000s, when his cancer had been in its initial stages. The applicants further argued that their interpretation of the underlying domestic provisions was also required by Article 6 of the Convention, as a rejection of their claims on the grounds that the relevant time-limit had lapsed would render their right of access to a court purely fictitious. 16 .     On 29 March 2012 the Cantonal Court rejected the applicants’ claims on account of the lapse of the limitation period. It also noted that the claim for damages from a rental contract was brought against the wrong defendant (because the original company, Eternit AG, had sold the house in question before it had been restructured several times and eventually resulted in the company called Eternit (Schweiz) AG). Referring to the case-law of the Federal Court, the Cantonal Court held in essence that limitation periods began to run when a claim became due. In cases of tort claims in respect of personal injury (whether caused by an act or failure to act), a claim became due when the act (or failure to act) that had caused the injury in question took place – even in the event that its consequences became apparent only later. To link the beginning of the limitation period to the perception of injuries would be to counteract legal certainty, which was the main purpose of the existence of a time-limit. Therefore, in the present case, the claim had become due at the latest in 1972, when Marcel Jann had moved away from his parents’ home (see paragraph 5 above). The claim had accordingly become statute ‑ barred ten years later – that is, in 1982. The Cantonal Court further held that this interpretation of the underlying domestic provisions was in conformity with Article 6 of the Convention. Referring again to the case-law of the Federal Court, it considered that the right of access to a court, as guaranteed by Article 6 of the Convention, was not absolute and that a limitation period of ten years constituted a proportionate length of time and that it served the purpose of legal certainty – especially considering that the State afforded other means of relief to asbestos victims under the accident-insurance law ( Unfallversicherungsrecht ): specifically, in the form of care services ( Pflegeleistungen ), pension benefits ( Rentenleistungen ) and “integrity compensation” ( Integritätsentschädigung ) – irrespective of whether or not the limitation period had elapsed.      Before the Court of Appeal 17.     On 4 July 2012 the applicants lodged an appeal with the Court of Appeal ( Obergericht ) of the Canton of Glarus. 18 .     On 4 October 2013 the Court of Appeal upheld the judgment of the Cantonal Court, referring again to the relevant case-law of the Federal Court regarding the start of limitation periods. As regards omissions, it held that it had been correct to link the beginning of the limitation period to Marcel Jann’s exposure to asbestos, given the fact that that event (and not any subsequent failure to inform him) had caused the harm in question. In any event, any specific duty to inform him would have ended when the dangers of asbestos had become known to the public in the 1980s. A claim in this respect would thus have also become statute-barred before the applicants had lodged their claim in 2009 (see paragraph 14 above). The Court of Appeal further referred to the case-law of the Federal Court affirming the compatibility – within the context of asbestos-related cases – of the underlying domestic provisions regarding time-limits with Article 6 of the Convention.      Before the Federal Court 19 .     On 6 November 2013 the applicants lodged an appeal with the Federal Court. At the same time, they also requested the suspension of the proceedings until the delivery of a decision in the case of Howald   Moor   and   Others (cited above), which was then pending before the Court. The applicants maintained that the limitation period in respect of contractual claims would only start to run from the moment that the claim in question arose – in their case at the earliest from the outbreak of Marcel Jann’s illness (namely, in 2004). To hold otherwise would mean that compensation claims would routinely be time-barred in view of the long latency period between the moment of exposure to asbestos and the outbreak of the disease of mesothelioma. The applicants also submitted that in the 1980s the specific conditions of Marcel Jann’s exposure to asbestos (that is, non-direct and non ‑ permanent) had not yet been known to have the potential to give rise to health-related dangers. Interpreting the underlying domestic provisions in such a manner that claims such as that lodged by the applicants were deemed to be time-barred was in breach of their right of access to a court under Article 6 of the Convention, as the application of the relevant time-limit would systematically deprive the persons concerned of effective legal redress. Given the fact that the latency period of the disease of mesothelioma was between fifteen and twenty-five years (whereas the statutory time-limit for lodging a claim was ten years), asbestos victims would never have a chance to act in a timely manner. Such a time-limit could not serve the legitimate aim of creating legal certainty for debtors ( Schuldner ) in cases like the instant one – that is to say in the event that victims were unaware that a tortious act had occurred, the victims’ inaction in respect of that tort claim (for example, the fact that they did not lodge a claim with a court) could not create the expectation that they had relinquished or would relinquish such claims.    Suspension of the proceedings before the Federal Court 20 .     On 8 April 2014 – after the Court had delivered its judgment in the case concerning Howald Moor and Others (cited above) on 11 March 2014 – the Federal Court suspended the proceedings, having decided to await the outcome of the proposed revision of the legal provisions (relating to the limitation periods that applied to the lodging of various kinds of claims under civil law) which was then being debated in Parliament (see paragraph 28 below). 21 .     On 30 June 2014 the applicants lodged a request with the Federal Court for it to reconsider the suspension of the proceedings. They noted that the judgment in the case of Howald Moor and Others (cited above) had become final on 11 June 2014 and argued that there was no reason for the continued suspension; they argued that the domestic courts should not wait for a revision of the legal provisions relating to the statute of limitations but should rather interpret the domestic law, as in force at that time, in a Convention-compliant way. Thus, a further delay in the proceedings would violate both the Constitution and Article 6 of the Convention. 22 .     On 3 July 2014 the Federal Court refused the applicant’s request for it to reconsider the suspension of the proceedings, deeming that there had been no change in circumstances that could justify such a step. 23 .     On 15 June 2018 Parliament voted to revise the statute of limitations and extended the absolute limitation period at issue to twenty years, without retroactive effect (see paragraph 31 below). 24 .     On 31 August 2018 the applicants again lodged a request with the Federal Court for it to end the suspension of the proceedings, referring to the above-mentioned revision by Parliament of the statute of limitations (see paragraph   23 above). The counterparties (the four defendants), on the other hand, pleaded in their submissions of 20, 24 and 25 September and   15   October, respectively, that the proceedings should remain suspended until the entry into force of the new legal provisions.    Resumption of the proceedings before the Federal Court 25 .     On 6 November 2018 the Federal Court allowed the applicants’ request and resumed the proceedings. It noted that the legal reform had been adopted by Parliament on 15 June 2018 (see paragraph 31 below) and that no referendum had been announced in respect of it before the deadline for doing so (namely, 4 October 2018). Consequently, the reason for suspending the proceedings had ceased to exist. 26 .     On 6 November 2019 the Federal Court upheld the judgment of the Court of Appeal (see paragraph 18 above) and dismissed the applicants’ claims (BGE 146 III 25). Noting that a foundation had been set up to administer a compensation fund for asbestos victims ( Stiftung Entschädigungsfonds für Asbestopfer – hereinafter “the EFA Foundation”; see paragraphs 33-34 below), it held that the new domestic provisions regarding the statute of limitations – which extended the absolute limitation period in cases of killing or causing bodily injury to twenty years – were not applicable to the applicants’ case. The Federal Court pointed out that, as regards the interpretation of limitation period, it had not changed its case-law since the delivery of the judgment in Howald Moor and Others (cited above), contrary to what the applicants had argued. Consequently, a limitation period began to run when the harmful act in question was committed – not when knowledge was acquired of the harm caused. In respect of contractual liability, the moment at which the injuring party breached its contractual duties, whether by act or failure to act, constituted the relevant point in time; in respect of non-contractual claims, the breach of the duty of care constituted the relevant point in time. Therefore, all claims based on acts committed in or before 1972 had become statute-barred by the time that the applicants had brought their action in 2009. 27 .     The Federal Court furthermore held that the right of access to a court guaranteed by Article 6 of the Convention, as interpreted by the Court in its judgments in the cases of Howald Moor and Others (cited above) and Stubbings and Others v. the United Kingdom (22 October 1996, Reports of Judgments and Decisions 1996 ‑ IV), was compatible with the existence of absolute limitation periods. On the basis of this understanding of Article 6 of the Convention, it was not disproportionate to dismiss a claim thirty-seven years after the last possible moment at which the harmful act in question had occurred. In the light of this, it could remain open to question to what extent the setting-up of the EFA Foundation (see paragraphs 33-34 below) constituted one of the other possible solutions (under the existing legislation) in respect of claiming damages, as it had been called for in the judgment in Howald Moor and Others (cited above, § 78) – irrespective of whether the applicants would indeed be able to benefit from the EFA Foundation.     OTHER RELEVANT DEVELOPMENTS AT DOMESTIC LEVEL CONCERNING ASBESTOS VICTIMS    Legislative reform of the statute of limitations for claiming damages in cases of killing of persons or bodily injury 28 .     On 29 November 2013 the Federal Council ( Bundesrat ) submitted draft legislative proposals to Parliament with a view to the latter body amending the limitation periods that applied to the lodging of certain kinds of claims under civil law, including, notably, a proposal that the ten-year absolute limitation period be increased to thirty years (see Howald   Moor   and   Others , cited above, §§ 42 and 54-57). No transitional provisions were set out in respect of persons whose claims had already become time-barred under the law as then in force. 29 .     On 14 August 2014 the Legal Affairs Committee ( Kommission   für   Rechtsfragen ) of the National Council ( Nationalrat ) proposed the creation of a special compensation fund for asbestos victims whose claims had become time-barred. On 28 May 2015 the proposal was withdrawn in view of the results of a round table on asbestos held in February 2015 (see paragraph   33 below). 30.     On 15 December 2015 the Council of States ( Ständerat ), as the second chamber of the State parliament, proposed a transitional solution for asbestos victims. On 29 May 2018 the transitional solution was revoked in view of the creation of the EFA Foundation in March 2017 (see paragraphs 33-34 below). 31 .     On 15 June 2018 Parliament enacted a new statute of limitations, which, inter alia , added new provisions to the Code of Obligations ( Obligationenrecht ). The absolute limitation period for claiming damages in respect of the killing of a person or of bodily injury was increased from ten to twenty years, starting from the moment at which the harmful conduct in question occurred or ceased (see the new Article 60 § 1 bis and the new Article   128a of the Code of Obligations in paragraphs 41-42 below). No referendum was proposed in respect of the legislative changes before the deadline for doing so (namely, 4 October 2018), and the new provisions entered into force on 1 January 2020. 32 .     The records of the parliamentary debates show that the discussions also touched upon the question of the determination of the point in time at which the running of the limitation periods begins ( dies a quo ). In this context, it was also noted that the law could not solve all problems and that the Federal Court would have to contribute to finding a solution in practice. Notably the issue of the running of the limitation period in the case of illnesses that manifest themselves only after a long period of time has passed needed to be addressed by the domestic courts. [1]    The setting-up of the EFA Foundation 33 .     On 26 February 2015 a round table was held on the initiative of the authorities to discuss the difficulty faced by asbestos victims in lodging claims for damages and to find consensual solutions for those victims who could not benefit from mandatory (professional) accident insurance ( Unfallversicherung ). As a result, it was decided to set up a special private ‑ law foundation to administer a compensation fund for asbestos victims – the EFA Foundation. It was formally founded on 28 March 2017 and became operational on 1 July 2017. 34 .     Under the EFA Foundation’s regulations governing compensation payments ( Entschädigungsreglement – hereinafter the “Compensation Regulations”) – as adopted on 9 May 2017 – persons in whom the symptoms of mesothelioma had become apparent only after 1 January 2006 could apply for benefits from the EFA Foundation (Articles 3 and 8 of the Compensation Regulations). A “hardship clause” ( Härtefall-Klausel ) provided for the possibility to obtain an analogous solution in a “hardship situation” (Article   14 of the Compensation Regulations). However, the Compensation Regulations did not define what a “hardship situation” was. In order to qualify to receive benefits from the EFA Foundation, the persons concerned had to formally waive their right to lodge any claim for damages with the domestic courts (Article 13 of the Compensation Regulations). Persons who had already lodged claims for compensation with the courts prior to the Compensation Regulations entering into force on 1 July 2017 could receive benefits from the EFA Foundation only if they provided proof that all procedural steps had been formally abandoned – that is, that their claims had been withdrawn (Article 2 of the Compensation Regulations). 35 .     On 31 March 2022 – that is, after the Government had been given notice of the present application – the Compensation Regulations were amended so as to provide the possibility for persons in whom the symptoms of mesothelioma had appeared after 1996 (not only after 2006) to apply to the EFA Foundation to receive benefits (the amended Articles 3 and 8 of the Compensation Regulations), with retroactive effect. 36 .     The Government submitted that approximately 120 people are diagnosed with mesothelioma every year in Switzerland. Of these, some twenty to thirty persons are not entitled to benefits from the (mandatory) accident insurance, but only to those from the (mandatory) health insurance and (mandatory) invalidity insurance, which are less advantageous. According to the information available on the website of the EFA Foundation, [2] approximately 200 people are diagnosed with mesothelioma every year in Switzerland; [3] the majority of those cases have been caused by exposure to asbestos – mostly within the course of those persons’ professional lives. Furthermore, again according to the information available on the website of the EFA Foundation, exposure to asbestos can lead to mesothelioma “also forty-five or more years [after exposure]” ( auch nach 45   Jahren und mehr ). According to the 2022 activities report of the EFA Foundation, as published on its website, 335 people applied to it requesting benefits between its creation in 2017 and the end of 2022 – an average of about five applications per month. In 2022, thirty applications were received.    Execution of the Howald Moor and Others judgment 37 .     On 11 March 2014 the Court delivered its judgment in the case of Howald Moor and Others (cited above), which concerned claims for damages based on malignant pleural mesothelioma which had been caused by exposure to asbestos but which had been ruled to be time-barred by the domestic courts. The Court notably considered that – taking into account the existing legislation in Switzerland in respect of similar situations, and without wishing to prejudge other possible solutions that could be contemplated – where it was scientifically proven that a person had been unable to know that he or she was suffering from a certain disease, such a circumstance (that is, the ignorance on the part of the sufferer) should be taken into account when calculating the limitation period ( Howald Moor and Others , cited above, §   78). In the process of the execution of that judgment, the Government informed the Committee of Ministers that, inter alia , the EFA Foundation had been set up and that the absolute limitation period had been extended to twenty years (see paragraphs 31-34 above). On the basis of a Government action report of 3 April 2019 (document DH ‑ DD(2019)403), the Committee of Ministers declared, on 25 September 2019, that it had exercised its functions under Article 46 § 2 of the Convention in respect of that case and had decided to close the examination thereof (Resolution   CM/ResDH(2019)232). RELEVANT LEGAL FRAMEWORK AND PRACTICE         DOMESTIC LAW IN FORCE AT THE MATERIAL TIME 38 .     Article 60 § 1 of the Code of Obligations ( Obligationenrecht ) concerned the time-limit in respect of obligations in tort and read, at the relevant time, as follows. “The right to claim damages [ der Anspruch auf Schadenersatz ] or satisfaction [ oder Genugtuung ] becomes statute-barred three years from the date on which the person suffering damage became aware of the damage [in question] and of the identity of the person liable for it, but in any event ten years after the date on which the harmful conduct occurred or ceased.” 39 .     Article 130 § 1 of the Code of Obligations defined the start of the limitation period as follows: “The limitation period commences as soon as the debt is due.” 40 .     Under section 100(7) of the Federal Act on the Federal Court ( Bundesgesetz über das Bundesgericht ), an appeal may be lodged against an unlawful dismissal of or delay [in issuing] a decision ( unrechtmässiges Verweigern oder Verzögern eines Entscheids ) at any time.       LEGISLATIVE REFORM ENACTED IN 2018 41 .     Following the legislative reform in respect of the statute of limitations enacted by Parliament on 25 June 2018 (which came into force on 1 January 2020 – see paragraphs   28-31 above), a new absolute limitation period of twenty years in the case of the killing of a person or of bodily injury is now provided under Article 60 § 1 bis of the Code of Obligations, which reads – in so far as relevant – as follows: “In the case of the killing of a person or bodily injury, the right to claim damages or satisfaction becomes statute-barred three years from the date on which the person suffering damage became aware of the damage [in question] and of the identity of the person liable for it, but in any event twenty years after the date on which the harmful conduct occurred or ceased.” 42 .     A similar new provision has been added in respect of contractual claims under Article 128a of the Code of Obligations, which reads as follows: “Claims for damages or satisfaction arising from [the infliction of] bodily harm or the killing of a person, in breach of [duties arising from] a contract [ vertragswidrig ], shall become statute-barred three years after the day on which the injured party became aware of the damage, but in any event twenty years after the day on which the harmful conduct occurred or ceased.” 43 .     The wording of the existing Article 134 § 1 (6) of the Code of Obligations was amended and now states that the limitation period does not begin and stands still if it has begun, for as long as a claim cannot be asserted before a court for objective reasons ( solange eine Forderung aus objektiven Gründen vor keinem Gericht geltend gemacht werden kann ).     DOMESTIC PRACTICE 44 .     The relevant domestic practice – notably as regards the starting point for the calculation of the limitation period ( dies a quo ) in the light of the case-law of the Federal Court – was summarised in the judgment delivered in respect of the case of Howald Moor and Others (cited above, §§ 47-48). In short, the starting point is determined according to the time at which the harmful act in question took place (or ended) and not according to the time at which the effects of that act began to be felt – even if this means that the limitation period ends before the effects manifest themselves. Furthermore, in its decision of 16 November 2010 (BGE   137   III   16) – which was at issue in the case of Howald Moor and Others (cited above, §§ 34-39) – the Federal Court also noted that the latency period between exposure to asbestos and the manifestation of mesothelioma was between fifteen and forty-five years. 45 .     In a decision of 6 November 2019 (that is, on the same day as that on which the Federal Court issued its decision in respect of the present case – see paragraphs 26-27 above), the Federal Court partially granted an appeal lodged by the heirs of an asbestos victim who had been exposed to asbestos in the course of his professional duties over a long period of time (BGE   146   III 14). It noted, firstly, that it was not true (as argued by the complainants) that it had changed its case-law after the judgment in Howald Moor and Others (cited above). It further held, as regards the relevant former limitation period (see paragraphs 38-39 above), that if the victim had been exposed to asbestos for an uninterrupted period of time and if, from a medical point of view, it was not possible to determine the exact moment at which the disease had been caused, then the harmful act in question corresponded to the length of that exposure to asbestos. Assuming that no protective measure had been taken during the entire time of the employment relationship (which had only ended in 1998), the absolute limitation period had started to run only from the moment of the victim’s last exposure to asbestos. The Federal Court concluded that – provided that no adequate protective measure had been taken for the entire duration of the employment relationship (which the court at the previous level of jurisdiction would have to re ‑ examine) – the claims lodged by the victim’s heirs had not become absolutely time-barred at the moment when the counterparty had declared its waiver of the statute of limitations ( Verjährungsverzicht – that is to say the counterparty had declared that it would not make use of its right to invoke the statute of limitations). THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE RIGHT OF ACCESS TO A COURT 46.     The applicants complained that they had been denied access to a court, in breach of Article 6 § 1 of the Convention, which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”    Admissibility 47.     The Government submitted that Article 6 of the Convention was not applicable to the present case, as limitation periods constituted substantive law under Swiss legislation. 48.     The applicants insisted that the present case did not differ from the one examined in Howald Moor and Others v. Switzerland , nos. 52067/10 and   41072/11, 11 March 2014, and that there was therefore no reason to change the Court’s practice. They submitted that neither the Federal Court nor the Government had denied that Swiss law in principle allowed claims to be lodged in respect of instances of unlawful bodily injury, and that the Government did not argue that these had been examined in the proceedings before the domestic courts. 49.     The Court notes that in the case of Howald Moor and Others (cited above, § 67), it declared admissible very similar complaints to the present one. It sees no reason not to do so in the present case. It reiterates that Article   6 of the Convention applies to disputes of a “genuine and serious nature” concerning the existence of a right which can be said, at least on arguable grounds, to be recognised under domestic law, as well as to the scope or manner in which it is exercised. Where, at the outset of the proceedings, there was a serious and genuine dispute about the existence of such a right, the fact that the domestic courts concluded that the right did not exist does not remove, retrospectively, the arguability of the applicants’ claim (see Z   and Others v. the United Kingdom [GC], no. 29392/95, §§ 87-89, ECHR   2001-V). 50.     The Court concludes that the complaint is neither manifestly ill ‑ founded nor inadmissible on any of the grounds listed in Article 35 of the Convention and must therefore be declared admissible.    Merits      Submissions by the parties    The applicants 51.     The applicants insisted that their right of access to a court had been violated on account of the absolute limitation period set out by the former (and the new) domestic legislation, given the long latency period that characterised asbestos-related illnesses. The impugned domestic judgments had systematically applied the provisions of that legislation without taking into account the circumstances of Marcel Jann – despite the fact that his case had concerned mesothelioma, which could often only be detected after a latency period of twenty-five or more years – at the earliest shortly before the onset of that illness. 52.     The proceedings in respect of the present case had been limited to the question of the application of the statute of limitations. The argument that the case had become statute-barred had therefore constituted a procedural obstacle that had denied the complainants access to a court. The applicants’ case had not been judged materially owing to that obstacle; consequently, their right of access to a court had been impaired. The applicants further pointed out that the Government had correctly not argued that there had been no legal basis under domestic legislation for claims for damages arising from the causing of unlawful bodily harm. 53.     In the applicants’ view, the Federal Court had disregarded the judgment in Howald Moor and Others (cited above). Furthermore, the Federal Court had noted that it had not amended its practice in cases of late ‑ onset damage caused by exposure to asbestos. The applicants further took issue with the Federal Court’s view that it “could not infer from the judgment in Howald Moor and Others (cited above) that absolute limitation periods – in the sense of a general substantive rule – should be excluded and that a claim lodged thirty-seven   years after the [causing of] alleged damage should still be accepted [for examination]”. They also referred to several articles published in the legal literature discussing different possible ways of interpreting domestic legislation, such as a different determination of the dies   a quo or a suspension of the running of the limitation period under Article   134 § 1 (6) of the Code of Obligations (see paragraph 43 above). 54.     The applicants maintained that the absolute limitation period did not pursue a legitimate purpose in cases involving damage caused by exposure to asbestos, as it rendered it impossible for victims to lodge claims after their becoming aware of such damage. They further questioned whether the restrictive nature of the statute of limitations was proportionate to the aim of protecting the debtor; they submitted that the Government had failed to recognise that the Court had never provided a maximum limitation period in any of its decisions, and that the Court was not concerned with specific time limits but rather with ensuring that people who had suffered bodily injury could have their claims examined by domestic courts. The applicants further reiterated that Marcel Jann had lodged his claim only a short time after he had become aware that he was suffering from an asbestos-related disease and about thirty-four years after his last exposure to asbestos. An absolute time limitation of ten years – and now twenty years following the above ‑ mentioned legislative reform (see paragraph 31 above) – was generally disproportionate in view of the lateness of the onset of the damage suffered by asbestos victims. 55.     As regards the EFA Foundation, the applicants submitted that the possibility for asbestos victims to claim benefits from it did not provide redress for the Convention violation; moreover, the Federal Court had never asserted that the benefits disbursed by the EFA Foundation constituted such redress. On the one hand, there was no legal or enforceable right to those benefits; on the other hand, the applicants would have to explicitly renounce their right to benefits under domestic law and to the judicial enforcement thereof. In any event, Marcel Jann’s heirs would not be able to benefit from the EFA Foundation, as his illness had manifested itself before 2006. Moreover, the EFA Foundation did not offer a solution for any other person who had become ill before 2006. Once the circle of possible beneficiaries of the EFA Foundation had been enlarged by the inclusion of those persons in whose cases the disease manifested itself after 1996 (and not only after 2006 – see the changes adopted to the Compensation Regulations in March 2022 in paragraph 35 above), the applicants maintained that any possible benefits they might receive would be much lower than what they could claim under civil law. In addition, they would have to withdraw the claims that they had already lodged with the courts, which would mean that the legal costs they had incurred thus far would have been lost. In summary, they had no intention of applying to receive benefits from the EFA Foundation. 56.     The applicants concluded that there were no differences between their case and that of Howald Moor and Others (cited above) that would justify a deviation from the Court’s findings in the latter case. The applicants (and other similarly affected persons) had de facto been denied access to a court (in violation of Article 6 § 1 of the Convention) on account of the interpretation of the underlying provisions under which claims lodged by injured persons could become time-barred before the persons concerned could objectively have become aware of the damage that they had incurred.    The Government 57.     The Government denied that there had been an interference with the very essence of the applicants’ right of access to a court in view of the in-depth analysis carried out by the domestic courts. The applicants had not been prevented from lodging their complaints at several levels of jurisdiction. The two cantonal courts had examined the arguments submitted by the applicants and had concluded that their claims had become time-barred in view of the absolute statute of limitations. The Federal Court had also examined the question of limitation periods in the light of its own case-law and the relevant legal literature, as well as of the Convention and the Court’s case-law – in particular the judgment that it had delivered in respect of the case of Howald Moor and Others (cited above). In sum, the Government, referring to Markovic and Others v.   Italy   ([GC], no. 1398/03, §§ 105 and 115, ECHR   2006-XIV), were of the opinion that the applicants had had access to a court – even though the examination of their case by the domestic courts had been limited by the fact that one of the substantive