BALMER-SCHAFROTH and NINE OTHERS v. SWITZERLANDDISSENTING OPINION OF MR. S. TRECHSEL
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Document date: April 18, 1996
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DISSENTING OPINION OF MR. S. TRECHSEL
JOINED BY MM. A.S. GÖZÜBÜYÜK, B. CONFORTI,
D. SVÁBY, P. LORENZEN AND K. HERNDL
I regret that I cannot agree with the majority that there has
been a violation of Article 6 in the present case as I am of the
opinion that Article 6 does not apply to the dispute at issue.
If one looks at the applicants' complaints in a narrow
perspective, it is difficult to distinguish the case from previous
case-law, e.g., the case of Benthem (see Eur. Court H.R., judgment of
23 October 1985, Series A no. 97) and of Skärby (see Eur. Court H.R.,
judgment of 28 June 1990, Series A no. 180-B).
However, the present case concerns the authorisation to operate
a nuclear power plant. This is a matter of national importance which
is the object of heated public debate in Switzerland as well as in
other countries. On the one hand, such plants produce a considerable
part of the energy consumed in the country at relatively low ecological
costs; on the other hand, the dangers of such an operation are enormous
in case of an accident. As the Chernobyl catastrophe has shown,
effects may be registered at hundreds, if not thousands of kilometers'
distance.
In contrast to the cases dealt with so far by the Commission and
the Court, the issues involved in the authorisation to operate a
nuclear power plant go far beyond the immediate neighbourhood. While
I do not deny that civil rights of neighbours may be affected, I find
it artificial to say that the decision on such an authorisation can be
regarded as a "determination of civil rights and obligations".
I will illustrate this with an argument ad absurdum:
Let us suppose a Government envisages military action against a
neighbouring country. It will be possible to identify certain
geographical areas with a high probability of considerable damage to
property, even to life and limb. Could persons living in that area
apply to a court with a view to having it decide whether the
belligerent action is lawful? I cannot believe that such an
interpretation of Article 6 would be correct.
The policy of a country in matters of energy-supply is of general
interest and must be decided upon in the democratic political process
designed for decision-making on the national level. It can hardly be
expected that such decisions will meet with general approval. For
instance, it is probable that there will be objections from persons
living in the vicinity of a nuclear power plant or other installations
linked with certain dangers or producing adverse environmental effects
such as pollution.
I would not go so far as to say that in no case could any
question arising in such a context be regarded as falling to be decided
according to the rules laid down in Article 6. Actually, to the extent
that a person considers that the operation of a nuclear power plant
amounts to a (partial) expropriation, access to court is fully
guaranteed under Swiss law (cf. the dissenting opinion of MM. H.G.
Schermers, B. Marxer, M.A. Nowicki, I. Cabral Barreto, J. Mucha and
C. Bîrsan). However, in the present case the "dispute" concerns the
basic decision to authorise the operation of the plant to continue.
The Convention cannot, in my view, be interpreted as requiring that
such a decision should in the last instance be taken by a judicial
organ. I conclude, therefore, that Switzerland could, without
violating Article 6, decide that this decision be left with the
political authorities of the Federation.
(Or. English)