CEDH · PRESS;GCJUDGMENTS;ENG — 6 avril 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sBB9EE52A { font-family:Arial } .s21B97EC1 { width:25.99pt; display:inline-block } .s45AE5F73 { font-family:Arial; letter-spacing:-0.15pt } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s5E15F1C8 { width:0.33pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS   257   6.4.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF ATHANASSOGLOU AND OTHERS v. SWITZERLAND   In a judgment delivered at Strasbourg on 6 April 2000 in the case of Athanassoglou and Others v. Switzerland, the European Court of Human Rights held by twelve votes to five that Articles 6 § 1 (right to a fair trial) and 13 (right to an effective remedy) of the European Convention on Human Rights were not applicable in the instant case.   1.   Principal facts   The applicants, Andy Athanassoglou, Ursula Athanassoglou, Martin Schlumpf, Antoinette Schweickhardt, Claudius Fischer, Pius Bessire, Katharina   Bessire and Claudia Rüegsegger, all Swiss nationals, live in the villages of Villigen, Würenlingen, Böttstein and Kleindöttingen, situated in zone 1 in the vicinity of unit II of a nuclear power plant in Beznau (Canton of Aargau).   On 18 December 1991, the Nordostschweizerische Kraftwerke AG (“NOK”), a private company which had operated the nuclear power plant since 1971, applied to the Swiss Federal Council (the government) for an extension of its operating licence for an indefinite period.   By 28 April 1992 more than 18,400 objections were lodged with the Federal Office of Energy, a large number of them coming from Germany and Austria. In their objections the complainants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power plant. They opposed the application for an extension of the operating licence because of the risks which they maintained such an extension entailed, to their rights to life, physical integrity and property. According to them, the nuclear power plant did not meet current safety standards on account of serious and irremediable construction defects and that, owing to its condition, the risk of an accident occurring was greater than usual.   On 12 December 1994 the Federal Council dismissed all the objections as being unfounded and granted NOK a limited operating licence expiring on 31 December 2004.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 9 June 1995. Having declared the application admissible, the Commission adopted a report on 15 April 1998   in which it expressed the opinion that there had been no violation of Article 6 § 1 (fifteen votes to fifteen with the casting vote of the Acting President) and that there had been no violation of Article 13 (sixteen votes to fourteen). The case was transmitted to the European Court of Human Rights on 1 November 1998.     Judgment was given by a Grand Chamber of 17 judges, composed as follows:   Elisabeth Palm (Swedish), President, Luzius Wildhaber (Swiss), Antonio Pastor Ridruejo (Spanish), Jerzy Makarczyk (Polish), Pranas Kūris (Lithuanian), Riza Türmen (Turkish), Jean-Paul Costa (French), Françoise Tulkens (Belgian), Viera Strážnická (Slovakian), Marc Fischbach (Luxemburger), Volodymyr Butkevych (Ukrainian), Josep Casadevall (Andorran), Boštjan Zupančič (Slovenian), Hanne Sophie Greve (Norwegian), András Baka (Hungarian), Rait Maruste (Estonian), Snejana Botoucharova (Bulgarian), Judges,   and also Paul Mahoney , Deputy Registrar .   3.   Summary of the judgment [1]   Complaints   The applicants complained they were denied effective access to a court, in breach of Article 6 § 1 of the Convention. They also alleged a violation of Article 13, on the ground that, in relation to the decision to renew the operating licence of the Beznau II nuclear power plant, no effective remedy was available to them under domestic law enabling them to complain of violations either of their right to life under Article 2 or of their right to respect for bodily integrity as safeguarded under Article 8.   Decision of the Court   Government’s preliminary objection   The Government raised a preliminary objection of failure to exhaust domestic remedies. Before the Commission the Government had pleaded that the applicants could have filed a civil action based on the Swiss Civil Code. While no appeal lay against the decision to grant an operating licence for a nuclear power plant, civil actions related to property and neighbours’ rights would have enabled a court, if the conditions were met, to protect these rights, for instance, by ordering the closure of the nuclear power plant, even if such a decision would not have invalidated the operating licence of the nuclear power plant as such.   The Court considered that the Government’s argument was so closely linked to the substance of the applicants’ complaints under Article 6 § 1 that the preliminary objection should be joined to the merits. Article 6 § 1 of the Convention   The Court considered that the facts of the present case provided an insufficient basis for distinguishing it from the case of Balmer-Schafroth and Others (judgment of 26 August 1997, Reports of Judgments and Decisions , 1997-IV, p. 1346). It could not be said that the new report of the Institute for Applied Ecology ( Öko-Institut - Institut für angewandte Ökologie   e. V. ) in Darmstadt, Germany, in the present case, any more than the expert reports adduced by the objectors in the Balmer-Schafroth case, showed that at the relevant time the operation of the Beznau II power plant exposed the applicants personally to a danger that was not only serious but also specific and, above all, imminent. Neither was such a consequence shown by the unsolicited material, relating to the supply of nuclear fuel to the power plant during a subsequent period, which was submitted by the applicants after the close of the written procedure. The Court consequently could not but arrive in the present case at the same conclusion on the facts as in the Balmer-Schafroth case, namely that the connection between the Federal Council's decision and the domestic-law rights invoked by the applicants was too tenuous and remote. As the Court has consistently held, mere tenuous connections or remote consequences are not sufficient to bring Article 6 § 1 into play.   Indeed, the applicants in their pleadings before the Court appeared to accept that they were alleging not so much a specific and imminent danger in their personal regard as a general danger in relation to all nuclear power plants; and many of the grounds they relied on related to safety, environmental and technical features inherent in the use of nuclear energy. The Court considered, however, that how best to regulate the use of nuclear power was a policy decision for each Contracting State to take according to its democratic processes. Article 6 §   1 required that individuals be granted access to a court whenever they had an arguable claim that there had been an unlawful interference with the exercise of one of their (civil) rights recognised under domestic law. It did not, however, give them any rights as regards the subsequent extension of the licence and operation of the station beyond those under the ordinary Civil Code for nuisance and de facto expropriation of property. It was not for the Court to examine the hypothetical question whether, if the applicants had been able to demonstrate a serious, specific and imminent danger in their personal regard as a result of the operation of the Beznau II power plant, the Civil Code remedies would have been sufficient to satisfy these requirements of Article 6 § 1, as the Government contended in the context of their preliminary objection.   This being so, there was likewise no necessity for the Court to rule on the Government’s preliminary objection.   In sum, the outcome of the procedure before the Federal Council was decisive for the general question whether the operating licence of the power plant should be extended, but not for the “determination” of any “civil right”, such as the rights to life, physical integrity and of property, which Swiss law conferred on the applicants in their individual capacity. Article 6 §   1 was consequently not applicable in the present case.   Article 13 of the Convention   The Court has just found that the connection between the Federal Court’s decision and the domestic-law rights to protection of life, physical integrity and property invoked by the applicants was too tenuous and remote to attract the application of Article 6 § 1. The reasons for that finding likewise led in the present case to the conclusion, on grounds of remoteness, that in relation to the Federal Council’s decision as such no arguable claim of a violation of Article 2 or Article 8 of the Convention, and consequently no entitlement to a remedy under Article 13, had been made out by the applicants. In sum, as in the Balmer-Schafroth case the Court found Article 13 to be inapplicable.     Judges Costa, Tulkens, Fischbach, Casadevall and Maruste expressed a joint dissenting opinion and this is annexed to the judgment.   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] This summary by the registry does not bind the Court.