AS TO THE ADMISSIBILITY OF

                      Application No. 30003/96

                      by L., M. and R.

                      against Switzerland

      The European Commission of Human Rights sitting in private on

1 July 1996, the following members being present:

           MM.   H. DANELIUS, Acting President

                 S. TRECHSEL

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 G.B. REFFI

                 M.A. NOWICKI

                 B. CONFORTI

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

                 E. BIELIUNAS

      Mr. H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 23 January 1996

by L., M. and R. against Switzerland and registered on 29 January 1996

under file No. 30003/96;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant, born in 1959, is a nurse. The second

applicant, born in 1945, is a teacher.  The third applicant, born in

1911, is a pensioner.  All applicants are Swiss citizens residing at

Muttenz in the Canton of Basel-Landschaft in Switzerland. Before the

Commission the applicants are represented by Mr Martin Pestalozzi, a

lawyer practising in Rüti in the Canton of Zürich.

A.    Particular circumstances of the case

      The Gösgen and Beznau I and II nuclear power stations dispose of

their nuclear waste, in particular their waste fuel rods (Brennstäbe)

by transporting them by rail to France or Great Britain. The waste is

placed in heavy transport containers.  Annually, approximately 20 rail

transports take place.

      The applicants live in the vicinity of Muttenz railway station.

Some of the nuclear waste is transported by rail to Muttenz railway

station where it stays in the goods yard for approximately two hours.

Thereafter, it is transported via Basel to St. Louis in France.  In

1990 twelve such transports passed through Muttenz.

      On 20 January 1992 the applicants requested the Federal Office

for Energy Administration (Bundesamt für Energiewirtschaft) to grant

them standing in proceedings concerning the authorisation of the

transport of waste from nuclear power plants.  They submitted that they

were in the same position as the neighbours of nuclear power plants who

were also granted standing in the authorisation proceedings.

      The applicants pointed out that the materials at issue often

stayed for hours at the Muttenz railway station, and that it could not

be excluded that in case of a serious accident, radioactive materials

would be set free.  Depending on the weather, such materials could

affect the population in the surrounding areas.

      On 8 April 1992 the Federal Office for Energy Administration

(Bundesamt für Energiewirtschaft) dismissed the request on the ground

that the transports were carried out in conformity with national and

international norms which protected the security of the workers

involved as well as of the population in the vicinity.  Thus, the

integrity and density of the containers assured their security even in

the case of very serious accidents.  Indeed, every year hundreds of

transports were undertaken worldwide without any problems.  In view

thereof and of the fact that the transports only occurred occasionally,

the Federal Office found that the applicants could not be granted

standing in the authorisation proceedings.

      The applicants' appeal against this decision was dismissed on 24

March 1994 by the Federal Department of Transport and Energy

(Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement).  The

Department found that the applicants did not have locus standi in that

they were not sufficiently affected within the meaning of Section 48

of the Federal Act on Administrative Procedure (see below, Relevant

domestic law).

      The applicants then filed an administrative law appeal

(Verwaltungsgerichtsbeschwerde) which the Federal Court (Bundesgericht)

dismissed on 19 May 1995, the decision being served on 24 July 1995.

      In its decision the Federal Court noted that Section 100 (u) of

the Federal Judiciary Act (Organisationsgesetz) only excluded

administrative law appeals in the case of authorisations concerning

nuclear power plants, not the transport of nuclear waste (see below,

Relevant domestic law).  The applicants were therefore entitled to file

an administrative law appeal and to complain that the competent

authority had not granted them locus standi.  The decision continued:

      "It is not disputed that no additional nuisance results for the

      applicants from the normal preparation of the transports.  Thus,

      the only issue concerning their locus standi can be the risk of

      an accident.  The area bordering the entire transport route is

      potentially endangered, though only during the few annual

      transports, and, in addition, only for the temporarily limited

      period when the transports pass through.  An accident would often

      be less dangerous for the immediately affected neighbours than

      a train accident involving toxic chemicals or fuels.  The Main

      Department for the Security of Nuclear Power Stations has stated

      in its report ordered by the authority previously dealing with

      this case that the risk relating to the transports of nuclear

      rods was negligible.  Even in the case of a serious accident, the

      probability of which was slight, the integrity of the transport

      containers would remain intact.  Based on the applicable

      international norms these have been conceived in such a manner

      that even in the case of severe strain only a limited amount of

      radioactivity could escape.  The doses to be expected in the case

      of a radiation accident do not present an acute danger for the

      population; in an adverse case the radiation ... would locally

      be comparable to the natural radiation to which every person in

      Switzerland is subjected every year.  The applicants reproach

      this expert opinion of containing serious scientific errors; it

      transpires in their view from the opposite expert opinion that

      the contested transports have, on the contrary, a considerable

      risk potential.  This issue need not definitely be resolved in

      the present case.  Even the applicants agree that, in the case

      of a transport accident, far less radiation is to be expected

      than in the case of a serious nuclear power plant accident.  In

      these circumstances the authority whose decision has been

      appealed against has not breached federal law nor wrongly

      determined or incompletely established the relevant facts ...

      when it considered that for the individual person living along

      the transport line the probability of radioactive radiation was

      not significantly higher than the general risk, and that for this

      reason it could not be stated that there was a particularly

      serious danger potential which alone would entitle the individual

      to defend his interests in the authorisation proceedings.

      c)   ...  Individual persons living along the transport route do

      not enjoy locus standi in the respective proceedings (merely) in

      view of their local vicinity.  Rather, they must demonstrate a

      particular, extraordinary, concrete danger resulting from the

      transport.  This has not been done in this case."

      "Aus der normalen Abwicklung der Transporte ergeben sich für die

      Beschwerdeführer unbestrittenermassen keine zusätzlichen

      Immissionen, weshalb es bei der Frage nach ihrer Parteistellung

      nur um das Risiko eines Störfalles gehen kann.  Potentiell

      gefährdet ist dabei das anstossende Gebiet entlang der gesamten

      Transportstrecke, jedoch nur während der wenigen jährlichen

      Transporte und zudem nur zeitlich beschränkt für die Dauer der

      Durchfahrt des Transports.  Ein Unfall wäre für die unmittelbar

      betroffenen Anwohner häufig weniger gefährlich als ein

      Bahnunglück mit toxischen Chemikalien oder mit Treibstoffen.  Die

      Hauptabteilung für die Sicherheit der Kernanlagen bezeichnet in

      dem von der Vorinstanz eingeholten Amtsbericht das mit

      Brennelementtransporten verbundene Risiko denn auch als

      vernachlässigbar klein.  Selbst bei einem schweren Unfall, dessen

      Wahrscheinlichkeit sehr gering sei, dürfte die Integrität der

      Transportbehälter erhalten bleiben.  Diese seien gestützt auf die

      geltenden internationalen Normen so ausgelegt, dass selbst bei

      harten Testbeanspruchungen nur eine begrenzte Radioaktivität

      entweichen könne.  Die bei einem Strahlenunfall zu erwartenden

      Dosen stellten keine akute Gefährdung der Bevölkerung dar; in

      einem ungünstigen Fall sei die Strahlenbelastung ... lokal

      vergleichbar mit der natürlichen Bestrahlung, der sich jede

      Person in der Schweiz Jahr für Jahr ausgesetzt sehe.  Die

      Beschwerdeführer werfen diesem Gutachten zwar grobe

      wissenschaftliche Mängel vor; aus den von ihnen eingereichten

      Gegengutachten ergebe sich, dass den streitigen Transporten im

      Gegenteil ein sehr erhebliches Gefährdungspotential innewohne.

      Wie es sich damit verhält, braucht im vorliegenden Zusammenhang

      nicht abschliessend geklärt zu werden.  Auch nach Ansicht der

      Beschwerdeführer ist bei einem Transportunfall mit weit

      geringeren Strahlendosen zu rechnen als bei einem schweren

      Kernkraftwerkunfall.  Wenn die Vorinstanz unter diesen Umständen

      davon ausgegangen ist, dass für den einzelnen Streckenanwohner

      die Wahrscheinlichkeit einer radioaktiven Verstrahlung im

      Vergleich zum entsprechenden allgemeinen Risiko nicht signifikant

      höher sei und deshalb nicht von einem besonders grossen

      Gefährdungspotential gesprochen werden könne, das den Einzelnen

      erst berechtigen würde, seine Interessen im Bewilligungsverfahren

      wahrzunehmen ... , hat sie weder Bundesrecht verletzt noch den

      entscheidswesentlichen Sachverhalt falsch oder unvollständig

      festgestellt.

      c)... (E)inzelnen Anwohnern kommt im entsprechenden Verfahren

      nicht bereits (bloss) wegen ihrer örtlichen Nähe zur Trans-

      portroute Parteistellung zu, sondern nur, wenn sie eine besonde-

      re, durch den Transport verursachte, überdurchschnittliche, kon-

      krete Gefährdung darzutun vermögen, was hier nicht der Fall ist."

B.    Relevant domestic law and practice

      According to Section 4 para. 1 of the Federal Nuclear Act

(Eidgenössisches Atomgesetz) of 23 December 1959, the transport of

radioactive materials and waste will require an authorisation by the

Swiss Confederation (Bund). According to Section 5 para. 1, such an

authorisation shall be refused or subjected to conditions if human life

or other important assets are at risk.  Section 6 states that the

Federal Council, or a body designated by it, will decide whether or not

to grant such authorisations.

      Section 100 (u) of the Federal Judiciary Act

(Organisationsgesetz) excludes administrative law appeals

(Verwaltungsgerichtsbeschwerden) "in matters of nuclear power: against

decisions concerning the authorisations for nuclear power plants and

for preparatory acts" ("auf dem Gebiete der Kernenergie: Verfügungen

über Bewilligungen von Kernanlagen und von vorbereitenden Handlungen").

      Section 103 of the Federal Judiciary Act entitles a person to

file an administrative law appeal, and Section 48 of the Federal Act

on Administrative Procedure (Verwaltungsverfahrensgesetz) to file an

appeal (Beschwerde), if the person concerned is "affected by the

contested order and has an interest worthy of protection in its

quashing or amendment" ("durch die angefochtene Verfügung berührt ist

und ein schutzwürdiges Interesse an deren Aufhebung oder Änderung

hat").

      According to Section 104 of the Federal Judiciary Act, an

administrative law appeal can serve to complain of a breach of federal

law or the incorrect or incomplete determination of the facts.  Section

105 provides that the Federal Court may examine the facts ex officio,

except where a judicial body has previously been seized of the case.

COMPLAINTS

1.    Under Article 6 para. 1 of the Convention the applicants complain

that they have been denied access to court in respect of their

complaints about the dangers emanating from the rail transports of

dangerous radioactive materials.  They request locus standi in the

proceedings concerning the authorisation of such permits.  The

applicants submit that Article 6 para. 1 of the Convention is

applicable in their case; they contend in particular that their claims

are "civil" within the meaning of this provision in that the

interferences complained of affect their property, their lives and

their bodily integrity.  The applicants also submit that the dangers

at issue are sufficiently serious to warrant their access to court.

      The applicants vigorously contest the domestic authorities'

arguments according to which the potential risk of such transports is

significantly lower than that of nuclear power stations, since in the

applicants' view the appreciation of such risks is not an exact

science.  If an accident occurred, the consequences would be

extraordinarily serious.  The applicants submit that 98,5% of all train

accidents occur in the goods yards of a station, and only 1,5% of

accidents of good trains on the open rail.

      Under Article 6 para. 1 of the Convention the applicants further

complain that the Federal Court uncritically took over expert opinions

prepared by the opposing party, even though the applicants criticised

these expert opinions for their blatant scientific errors.

2.    Under Article 2 of the Convention the applicants submit that in

the domestic proceedings they have sufficiently substantiated that a

transport accident in Muttenz would directly threaten their lives.  In

their view the authorities are obliged to enact all necessary statutory

provisions which protect life, and not to authorise any activities,

such as the transport of radioactive materials, which

disproportionately endanger this right.

3.    Under Article 8 of the Convention the applicants complain that

the transport of nuclear waste with the ensuing dangers amounts to a

breach of their right to respect for their private and family life and

of their home.

4.    Subsidiarily the applicants complain under Article 13 together

with Articles 2 and 8 of the Convention that they did not have an

effective remedy with locus standi at their disposal.

5.    Under Article 14 of the Convention the applicants raise three

complaints.  First, they complain that the Swiss authorities have

granted access to court to those persons who invoke economic grounds,

whereas the applicants, who invoke their civil and fundamental rights,

have not been granted access to court.  Secondly, they complain of

discrimination in that persons in the vicinity of nuclear power

stations are treated differently from persons like them who live near

routes for transport of radioactive materials. Thirdly, they complain

of discrimination in that the Federal Court did not examine their

critical comments on the expert opinions prepared by the authorities.

THE LAW

1.    Under Article 6 para. 1 (Art. 6-1) of the Convention the

applicants complain that they have been denied access to court in

respect of their complaints about the dangers emanating from the rail

transports of  dangerous radioactive materials.  The applicants also

complain under this provision that the Federal Court uncritically

accepted expert opinions prepared by the opposing party, even though

the applicants criticised these expert opinions for their blatant

scientific errors.

      Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as relevant:

      "In the determination of his civil rights and obligations ...

      everyone is entitled to a fair ... hearing ... by (a) ...

      tribunal ..."

a)    The Commission has first examined the applicants' complaint about

lack of access to court within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

      The Commission notes that the applicants are complaining of

interferences with their property, their lives and their bodily

integrity.  In the Commission's opinion, an issue arises whether

Article 6 para. 1 (Art. 6-1) of the Convention is applicable on the

ground that the interferences complained of reached a level which would

imply that there was a genuine and serious dispute in respect of the

applicant's property right (see Eur. Court H.R., Zander judgment of 25

November 1993, Series A, no. 279-B, p. 40, para. 27).  The Commission

need nevertheless not resolve this issue since this part of the

application is in any event inadmissible for the following reasons.

      According to the Convention organs' case-law, Article 6 para. 1

(Art. 6-1) of the Convention secures to everyone the right to have any

claim relating to his civil rights and obligations brought before a

court or tribunal; in this way the Article embodies the "right to a

court" of which the right of access, that is the right to institute

proceedings before courts in civil matters, constitutes one aspect.

The right of access, however, is not absolute, but may be subject to

limitations since the right by its very nature calls for regulation by

the State.  Nonetheless the limitations applied must not restrict or

reduce the access left to the individual in such a way or to such an

extent that the very essence of the right would be impaired (see Eur.

Court H.R., Philis judgment of 27 August 1991, Series A no. 209, p. 20

et seq., para. 59).

      In the present case, the Commission notes that the Federal Court

in last resort would have had full jurisdiction to examine the factual

and legal aspects of the applicants' complaints if they had met the

other conditions for filing such an appeal.  However, the domestic

authorities refused to examine the applicants' complaints as the

applicants were not sufficiently affected within the meaning of Section

48 of the Federal Act on Administrative Procedure.  Thus, the Federal

Court in its decision of 19 May 1995 found that for the individual

person living along the transport line the probability of radioactive

pollution was not significantly higher than the risk of such pollution

for the population in general.

      In the Commission's opinion it does not appear unreasonable that

the Federal Court relied on such criteria when establishing the

applicants' locus standi.  The Court clearly did not exclude that in

circumstances where an applicant could demonstrate an extraordinary and

concrete danger, he would be granted standing in such proceedings.  It

cannot therefore be said that the limitations applied by the Federal

Court impaired the very essence of the right of access to court within

the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

      This part of the application is therefore manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b)    The applicants complain of the unfairness of the proceedings

before the Federal Court, in particular as regards the allegedly

incorrect expert opinions.  The Commission notes that these proceedings

related to the issue whether the administrative authorities had been

right in not giving the applicants locus standi.  The proceedings did

not, therefore, relate to the determination of the applicants' civil

rights and obligations within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.  This part of the application is

therefore incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      In any event, even assuming that Article 6 para. 1 (Art. 6-1) of

the Convention was applicable, the Commission finds no indication that

the proceedings were unfairly conducted or that the applicants could

not sufficiently put forward their point of view, or adduce any

evidence which they regarded as pertinent.

      It is true that the applicants also complain that the Federal

Court relied on allegedly incorrect expert opinions.  However, the

Commission notes that the appreciation of evidence is primarily a

matter for regulation by national law, and, as a rule, it is for the

national courts to assess the evidence before them (see Eur. Court

H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10,

para. 26).

      In the present case, the Commission notes that the Federal Court

in its decision of 19 May 1995 duly considered the expert opinion

submitted by the applicants.  It does not in the Commission's opinion

appear arbitrary if the Federal Court concluded that it need not

definitely resolve whether or not the expert opinions were correct

since the applicants themselves admitted that in the case of a

transport accident far less radiation was to be expected than in the

case of a serious nuclear power plant accident, and that, as a result,

the applicants were not granted standing in the proceedings.

      This part of the application is, therefore, also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    Under Article 2 (Art. 2) of the Convention the applicants submit

that in the domestic proceedings they have sufficiently substantiated

that a transport accident in Muttenz would directly threaten their

lives.  They complain that the authorities are obliged to enact all

necessary statutory provisions which protect life, and not to authorise

any activities, such as the transport of radioactive materials, which

disproportionately endanger this right.

      Article 2 para. 1 (Art. 2-1) of the Convention provides in its

first sentence that "(e)veryone's right to life shall be protected by

law".

      According to the Commission's case-law, this provision enjoins

a State to take steps to safeguard life which are appropriate to the

general situation (see No. 7154/75, Dec. 12.7.1978, D.R. 14 p. 32; No.

9348/81, Dec. 28.2.83, D.R. 32 p. 190; No. 16734/90, Dec. 2.9.91, D.R.

72 p. 236).

      The Commission has satisfied itself that the Swiss authorities

have sufficiently examined the applicants' allegations.  The Commission

notes the decision of the Federal Office for Energy Administration of

8 April 1992 according to which the transports were carried out in

conformity with national and international norms which protected the

security of the workers involved as well as of the population in the

vicinity and the integrity and density of the containers assured their

security even in the case of very serious accidents.  The Federal Court

in its decision of 19 May 1995 recalled that even in the case of severe

strain only a limited amount of radioactivity could escape from these

containers.

      In such circumstances, the Commission finds that the authorities

set up sufficient precautionary measures to comply with their

obligation to protect life under Article 2 (Art. 2) of the Convention.

      As a result, the Commission cannot find that the Swiss

authorities were required under the Convention to go so far as to

provide for additional individual protection for the persons living

within the vicinity of the areas where the rail transports were

conducted (see No. 9348/91, loc. cit.)

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3.    Under Article 8 (Art. 8) of the Convention the applicants

complain that the transport of nuclear waste with the ensuing dangers

amounts to a breach of their right to respect for their private and

family life and of their home.

      Article 8 (Art. 8) of the Convention states, insofar as relevant:

      "1.  Everyone has the right to respect for his private and

      family life (and) his home ...

      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."

      In the light of the above considerations in respect of Article

2 (Art. 2) of the Convention, it cannot be said that the domestic

authorities showed a lack of respect for the applicants' private and

family life and their home within the meaning of Article 8 (Art. 8) of

the Convention.

      This part of the application is therefore also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4.    Subsidiarily the applicants complain under Article 13 (Art. 13)

of the Convention together with Articles 2 and 8 (Art. 2, 8) of the

Convention that they did not have an effective remedy with locus standi

at their disposal.

      Article 13 (Art. 13) of the Convention provides:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy before a

      national authority notwithstanding that the violation has been

      committed by persons acting in an official capacity."

      However, the Commission considers that the applicants have not

made out an arguable claim under Articles 2 and 8 (Art. 2, 8) of the

Convention (see Eur. Court H.R., Plattform "Ärzte für das Leben"

judgment of 21 June 1988, Series A no. 139, p. 11 et seq., paras. 27

et seq.).

      This part of the application is therefore also manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.    Under Article 14 (Art. 14) of the Convention the applicants

complain, first, that the authorities have granted access to court to

those persons who invoke economic grounds, whereas the applicants, who

invoke their civil and fundamental rights have not been granted access

to court.  Secondly, they complain of discrimination in that persons

in the vicinity of nuclear power stations are treated differently from

persons like them who live near the routes for transport of radioactive

materials.  Thirdly, they complain of discrimination in that the

Federal Court did not examine their critical comments on the expert

opinions prepared by the authorities.

      Article 14 (Art. 14) of the Convention states:

      "The enjoyment of the rights and freedoms set forth in this

      Convention shall be secured without discrimination on any ground

      such as sex, race, colour, language, religion, political or other

      opinion, national or social origin, association with a national

      minority, property, birth or other status."

      The Commission need not resolve whether the applicants have

complied with the requirement under Article 26 (Art. 26) of the

Convention as to the exhaustion of domestic remedies in respect of

every complaint they are now raising.

      In respect of the first complaint, namely that the authorities

have only granted access to court to those persons who invoke economic

grounds, the Commission finds that the applicants have only

insufficiently substantiated their allegations.

      As regards their second complaint, namely of a difference of

treatment compared with persons living next to a nuclear power plant,

the Commission considers that the differences complained of in fact

related to essentially different factual circumstances (see Eur. Court

H. R., Belgian linguistic judgment of 23 July 1968, Series A no. 6,

p. 44 et seq., para. 7).

      Finally, insofar as the applicants complain that the Federal

Court did not examine their critical comments on the expert opinions

prepared by the authorities, the Commission finds no issue under

Article 14 (Art. 14) of the Convention.

      The remainder of the application is therefore also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

     Secretary to the                          Acting President

        Commission                             of the Commission

      (H.C. KRÜGER)                              (H. DANELIUS)