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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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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)

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