DISSENTING OPINION OF MM. H.G. SCHERMERS, B. MARXER,

        M.A. NOWICKI, I. CABRAL BARRETO, J. MUCHA AND C. BÎRSAN

      We regret that we cannot agree with the majority that there has

been a violation of Article 6 para. 1 of the Convention.

      We note that Section 679 of the Swiss Civil Code envisages an

action alleging a breach of property rights of a neighbour for damage

emanating from another neighbouring property (see above, para. 53).

      Moreover, Section 5 of the Federal Expropriation Act envisages

the possibility of obtaining compensation for the expropriation of the

property rights of the neighbour (see above, para. 54).

      According to the Federal Court's case-law (see above, paras. 37

et seq.), a court will then decide on the matter; in particular, the

court has the competence to examine whether there is a right at issue,

and to determine the amount of compensation for expropriation.  In the

light of the principle of proportionality, expropriation may cover some

or all of the person's property rights as a neighbour.  If the

expropriating neighbour refuses to institute such proceedings, the

Federal Court, acting upon the neighbour's administrative law appeal,

will decide in last instance.

      We further note that according to the Federal Court's case-law

(see above, para. 39), compensation will be granted if the nuisance was

not foreseeable; if it specially concerned the proprietor; and if it

resulted in serious damage.  In the present case, at least the

proprietors and tenants living in the area before the nuclear power

plant was constructed, could have maintained that the alleged damage

resulting from the nuclear power plant was unforeseeable.  They could

also have claimed that as the immediate neighbours they were specially

concerned; and that the effects of the nuclear power plant would result

in serious hazards to their health.  Their claims to compensation would

not therefore appear prima facie unreasonable.

      The applicants nevertheless dispute whether such a court could

have decided freely; they consider that such a court would consider

itself bound by the operation permit granted by the Federal Council,

i.e. the Swiss Government.

      It is true that the proceedings referred to would not have

permitted an examination of the operation permit of the nuclear power

plant as such.

      However, the courts concerned would have been called upon to

address the issue of compensation for the limitation in value of the

applicants' property rights in view of the interference, if any, with

their bodily integrity.  Moreover, when examining whether or not to

award compensation for expropriation of some or all of the applicants'

property rights, the courts concerned would have been obliged to

address the issue of health hazards, if any, arising from the nuclear

power plant.

      Finally, according to the Federal Court's case-law, the courts

would have been unrestricted in their examination as to whether

property rights of the applicants as neighbours existed; as to the

extent to which the property rights had been restricted in view of any

health hazards; and as to the amount of compensation to be awarded (see

above, para. 38).

      In our opinion, the applicants would therefore have had a

tribunal at their disposal within the meaning of Article 6 para. 1 of

the Convention.

      In our view therefore there has been no violation of Article 6

para. 1 of the Convention.

                                                        (Or. English)