DISSENTING OPINION OF JUDGE PETTITI, JOINED BY JUDGES GÖLCÜKLÜ, WALSH, RUSSO, VALTICOS, LOPES ROCHA AND JAMBREK

(T ranslation )

I voted with the minority in favour of finding that Article 6 of the Convention is applicable and would have found what, in the light of the Court's settled case-law, appears to be a clear violation of Article 6.

The Court has always held that where the rights of persons in need of protection from danger or harm are called into question and contested, any victim or potential victim is entitled to an effective remedy before an independent and impartial tribunal. However, in their reasoning in paragraph 40 of the judgment the majority confine themselves to finding:

“… [the applicants] did not for all that establish a direct link between the operating conditions of the power station which were contested by them and their right to protection of their physical integrity, as they failed to show that the operation of Mühleberg power station exposed them personally to a danger that was not only serious but also specific and, above all, imminent. In the absence of such a finding, the effects on the population of the measures which the Federal Council could have ordered to be taken in the instant case therefore remained hypothetical. Consequently, neither the dangers nor the remedies were established with a degree of probability that made the outcome of the proceedings directly decisive within the meaning of the Court's case-law for the right relied on by the applicants. In the Court's view, the connection between the Federal Council's decision and the right invoked by the applicants was too tenuous and remote.”

The issue in the present case was the danger that might arise if the safety measures provided for in the specifications of a public-works contract extending an operating licence for a nuclear power station were not properly checked. Nuclear power is a domain in which the dangers, uncontained by national borders, are both major and enduring; it need only be remembered that in 1997 western Europe continues to be affected by fallout from the Chernobyl accident.

The applicants' application did not impugn the “prerogative act” by which the Federal Council of the Swiss Confederation had chosen a nuclear power strategy, but the lack of any means of securing a review of the safety of the operating conditions when the operating licence was renewed.

It has been consistently noted in commentaries on the case-law on Article 6 [5] that:

(1) where the right in issue concerns an aspect that is decisive for the dispute and its consequences, Article 6 is applicable;

(2) if Article 6 is applicable, there must be access to the courts, so that appropriate proceedings may be brought before a judicial authority, and an effective remedy; and

(3) the executive of a State is not a judicial authority and does not constitute an independent and impartial administrative or judicial tribunal.

The majority have, as it were, skipped the first, second and third points and do not even explain in what respect the connection was too tenuous and hypothetical or why the applicants had to show a priori that the danger was imminent.

Yet it was not disputed that the Federal Council was a “government executive”, not a court. Even the Federal Council did not find the connection too tenuous.

It was not disputed that in their memorial the applicants pointed to a danger giving rise to pecuniary and non-pecuniary damage. In particular, they submitted:

“With regard to dealing with minor and more serious incidents, the authorities have, as a precaution, distributed iodine tablets to the people living in the immediate vicinity, that is to say containment zone no. 1, including the applicants. If they take these tablets immediately in the event of an emergency, the adjoining residents directly affected can reduce the absorption of radioactivity through the respiratory tract (blocking effect) during the evacuation period. The population of the wider area surrounding the power station will only be given the iodine tablets if an incident actually occurs, because the authorities assume that in the event of a minor or major malfunction, there will be sufficient time to distribute them to the rest of the population. That indicates that accident scenarios are being contemplated that will affect only the people living in the immediate vicinity. In the event of a major nuclear accident, this measure would facilitate the evacuation of these people. In both cases, therefore, the inhabitants in the immediate vicinity are more seriously affected than the rest of the population: the danger arises earlier, the warning time is shorter, evacuation must start sooner and be effected more quickly, etc.”

The applicants were not even afforded the opportunity of establishing before a court how serious the danger was and how great the resulting risk to them.

For Article 6 to be applicable, an applicant does not need to prove at the outset that a risk exists or what its consequences are; it suffices if the dispute is genuine and serious and there is a likelihood of risk and damage. It may suffice for finding a violation that there is proof of a link and of the potential danger (see the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, on the question of who is a potential victim). With regard both to applicability and to the existence of a remedy that is effective and accessible, the Court has always been firm on this point, even in disputes concerning minor interests, thus enabling decisions to be reviewed by independent and impartial tribunals satisfying the requirements of Article 6. People are entitled to adequate judicial review.

The majority have not drawn any distinction between the prerogative act (a term they have not used expressly, but which is implicit), that is to say the original political decision to use nuclear energy, and the decisions relating to licences, public-works contracts and specifications, which are not sovereign attributes of the State and cannot escape judicial scrutiny.

What applies to the supervision of quarries, motorways and waste-disposal sites applies a fortiori to nuclear energy and the operation of power stations required to comply with safety standards. If there is a field in which blind trust cannot be placed in the executive, it is nuclear power, because reasons of State, the demands of government, the interests concerned and pressure from lobbyists are more pressing than in other spheres. George Washington said that governments, like fire, are dangerous servants and fearsome masters. In the past (1939–45), as in the present, we have been only too aware of the shortcomings of which authorities and operators have been capable, regardless of people’s rights. That is why, in order to protect democracy, it was sought through the European Convention to establish machinery to review any administrative acts capable of causing injustice to the individual.

It has been held that anyone alleging a violation of the rights protected by the Convention is entitled to an effective remedy if the claim is arguable [6] . Admittedly, the State has complete discretion in organising the appeal system, making the arrangements for holding public inquiries, and providing for towns, local authorities and residents to take part, but supervision cannot be wholly left to the executive alone. The judiciary must be able to determine whether installations meet the requirements set out in the specifications.

The Court's case-law on whether the outcome of proceedings is decisive for civil rights is uniform and settled (see, in particular, the aforementioned study by M.-A. Eissen and the judgments in the cases of Benthem v. the Netherlands, 23 October 1985, Series A no. 97; Pudas v. Sweden, 27 October 1987, Series A no. 125-A; Bodén v. Sweden, 27 October 1987, Series A no. 125-B; Zander v. Sweden, 25 November 1993, Series A no. 279-B; Fayed v. the United Kingdom, 21 September 1994, Series A no. 294-B; and Süßmann v. Germany, 16 September 1996, Reports of Judgments and Decisions 1996-IV; and the use of standard phrases such as: “The outcome of the dispute was directly decisive for the applicants’ entitlement …”, “The applicant could plausibly and arguably maintain …” and “The objections lodged by the applicant [against] the Government … gave rise to a ' contestation ' (dispute) over one of his 'civil rights'“).

Those cases concerned only minor disputes over planning permission, the grant of licences and the terms on which they were operated and policed; they were on a wholly different scale from the problem of the dangers posed by incidents at nuclear power stations.

It will be recalled that the governments of several countries issued untrue statements following incidents at certain power stations, playing down the seriousness of the incidents and the risk of contamination harmful to health [7] .

Even though, in the instant case, the danger of such transgressions was not a priori established, the fact remains that the Federal Council cannot be considered an independent and impartial tribunal; it is not comparable to a Supreme Administrative Court.

The majority appear to have ignored the whole trend of international institutions and public international law towards protecting persons and heritage, as evident in European Union and Council of Europe instruments on the environment, the Rio agreements, UNESCO instruments, the development of the precautionary principle [8] and the principle of  conservation of the common heritage. United Nations Resolution no. 840 of 3 November 1985 on the abuse of power was adopted as part of the same concern. Where the protection of persons in the context of the environment and installations posing a threat to human safety is concerned, all States must adhere to those principles.

I cannot agree with the majority view that the Federal Council's decision “was … more akin to a judicial act than to a general policy decision …” (paragraph 37). By its very nature the Federal Council is not a judicial body for the purposes of the Convention.

The Court's assessment of the tenuousness of the connection and of the absence of imminent danger is, in my opinion, unfounded. Does the local population first have to be irradiated before being entitled to exercise a remedy?

In common with other international institutions, the Council of Europe, in its Convention on Civil Liability for Damage resulting from Activities Dangerous to the Environment, stressed the special hazards of certain installations, which need to be obviated by new international-law measures and through the exercise of effective remedies.

The aforementioned report by Mrs Lepage Jessua (a former Minister of the Environment) points to the same needs and does so precisely on the basis of the case-law of the European Court, which she backs up with an extensive bibliography and a list of documents published by the European Parliament (pages 85–86 of the report). The minority were mindful of this body of legal opinion, which strengthened their view that there had been a violation of Article 6 (doc. Cour (97) 269).

When assessing the impact of the applicants' arguments based on the fact that Swiss municipalities had made applications to French administrative courts (doc. Cour (97) 201), the Swiss Government sought in their reply to maintain that the Conseil d'Etat 's powers were limited to reviewing whether the correct procedures had been followed in law, quite independently of the merits. On the contrary, the administrative courts have powers of review in this sphere equivalent to those they have in proceedings in which their full jurisdiction is invoked; when an application is made for judicial review, the court's powers extend to the merits (judgment of the Judicial Assembly of the Conseil d'Etat of 27 March 1997). Even the Creys-Malville judgment (28 February 1997) cited by the Swiss Government (like a 1991 judgment in which an expert report on safety conditions was taken into account) was delivered in connection with the Government's proposed change of use (research centre), so – contrary to what was argued by the Swiss Government – the procedural question concealed the substantive issue, namely the operation of the power station.

A finding that Article 6 was applicable and had been infringed was all the more necessary, to my mind, because European comparative law shows that the national legal systems of member States such as Belgium, France, Italy, Spain, Austria, Germany, etc., possess a whole array of review machinery for dealing with disputes of this type.

In some cases ordinary appeals or administrative appeals up to the Supreme Administrative Court have even resulted in the closure of power stations (Austria) or refusal of permission to reopen them (France, Superphénix).

It can be said that the national law of European States has raised the “standard” of court protection to a very high level and that the “standard” of the protection afforded by the European Convention on Human Rights cannot be lower.

With regard to Article 13, the majority say merely: “Having already found that Article 6 of the Convention does not apply …, the Court reaches the same conclusion with respect to Article 13” (paragraph 42).

Yet the majority's reasoning on Article 6 was not transposable to Article 13.

In any event, in my opinion, the Court should, as in the case of Klass and Others cited above, have given practical effect to Article 13, taking into account both the violation of Article 6 and the lack of a remedy for the purposes of the Convention and Article 13. I therefore also voted in favour of finding that Article applicable.

The case of Balmer-Schafroth and Others is not an isolated one. The fact that it has been referred to the European Court will certainly prompt additions to the already considerable volume of legal opinion on this subject.

Together with my colleagues in the minority, I would have preferred it to be the judgment of the European Court that caused international law for the protection of the individual to progress in this field by reinforcing the “precautionary principle” and full judicial remedies to protect the rights of individuals against the imprudence of authorities.