PROCEDURE

The case was referred to the Court in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”)0 by the European Commission of Human Rights (“the Commission”) (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention).

The case originated in an application (no. 27644/95) against the Swiss Confederation lodged with the Commission under former Article 25 of the Convention by twelve Swiss nationals, Mr Andy Athanassoglou, Mrs Ursula Athanassoglou, Mr Martin Schlumpf, Mrs Antoinette Schweickhardt, Mr Claudius Fischer, Mrs Ursula Brunner, Mr Ernst Haeberli, Mrs Helga Haeberli, Mr Pius Bessire, Mrs Katharina Bessire, Mr Hans Vogt-Gloor and Mrs Claudia Rüegsegger (“the applicants”), on 9 June 1995. The applicants complained that they had not had access to a “tribunal” within the meaning of Article 6 § 1 of the Convention in respect of the decision of the Federal Council of 12 December 1994 to grant the Beznau II nuclear power plant an extension of its operating licence and that the procedure followed by the Federal Council had not been fair. Invoking Article 13 of the Convention, they also complained that they had no effective remedy enabling them to complain of a violation of their right to life and their right to respect for physical integrity as guaranteed by Articles 2 and 8 of the Convention. The Commission declared the application admissible on 7 April 1997. In its report of 15 April 1998 (former Article 31 of the Convention), it expressed the opinion that there had been no violation of Article 6 § 1 (fifteen votes to fifteen with the casting vote of the Acting President) and that there had been no violation of Article 13 (sixteen votes to fourteen)0.

Before the Court the applicants were represented by Mr R. Weibel, a lawyer practising in Berne (Switzerland). The Swiss Government (“the Government”) were represented by their Agent, Mr P. Boillat, Deputy Director, Head of the International Affairs Division, Federal Office of Justice.

On 14 January 1999 a panel of the Grand Chamber determined that the case should be decided by the Grand Chamber (Rule 100 § 1 of the Rules of Court).

The applicants and the Government each filed a memorial and replied to the questions of the Court.

After consulting the Agent of the Government and the applicants' lawyer, the Grand Chamber decided that it was not necessary to hold a hearing.

On 27 August and 10 September 1999 the applicants submitted a request for an interim measure under Rule 39 of the Rules of Court preventing the Beznau II nuclear power plant, which at that time was not functioning because of maintenance and repair works, from resuming its operation until the Court had given its judgment. On 13 October 1999 the Grand Chamber decided (by sixteen votes with one abstention) not to apply Rule 39 in the present case.

On 28 February 2000 the applicants submitted unsolicited material relating to the supply of nuclear fuel to the Beznau II nuclear plant from 1996 to 1998 by a British company. The President of the Grand Chamber decided that this material should be included in the case file despite its being submitted after the close of the written procedure (Rule 38 § 1 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants live in the villages of Villigen, Würenlingen, Böttstein and Kleindöttingen, situated in zone 1 in the vicinity of unit II of a nuclear power plant in Beznau (Canton of Aargau). They either own or rent property. The Beznau II nuclear power plant consists of a dual-loop pressurised water reactor. The site is situated five kilometres from the German border.

A. The application for an operating licence

On 18 December 1991, the Nordostschweizerische Kraftwerke AG (“NOK”), a private company which had operated the nuclear power plant since 1971, applied to the Swiss Federal Council (the government) for an extension of its operating licence for an indefinite period. The application was supported by a technical report and a safety analysis report established by NOK. The application and these reports were published in the Official Journal (Amtsblatt) of the Canton of Aargau of 27 January 1992 and in the Official Gazette of 28 January 1992 together with a notice inviting persons satisfying the requirements laid down by sections 6 and 48 of the Federal Administrative Proceedings Act (see paragraph 28 below) to file an objection.

By 28 April 1992 more than 18,400 objections were lodged by virtue of these provisions with the Federal Energy Office, a large part of which came from Germany and Austria. More than 99% of the objections were photocopies.

In their objections the complainants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power plant. They attached an expert opinion of the Institute for Applied Ecology (Öko-Institut – Institut für angewandte Ökologie e. V.) in Darmstadt, Germany, to their objections, namely a report of April 1992 on selected aspects of the safety analysis report produced by NOK in December 1991. Relying in particular on section 5(1) of the Nuclear Energy Act (see paragraph 22 below), they opposed the application for an extension of the operating licence because of the risks which they maintained such an extension entailed for their rights to life, to physical integrity and of property. According to them, the nuclear power plant did not meet current safety standards on account of serious and irremediable construction defects and, owing to its condition, the risk of an accident occurring was greater than usual. They also requested that in the meantime certain provisional measures be taken. The complainants also disputed the impartiality of the administrative bodies involved in the proceedings. With regard to the fact that under the applicable law the Federal Council would consider the application for an operating licence as an authority of both first and last instance, they invoked their right of access to a court, as guaranteed by Article 6 § 1 of the Convention.

On 5 February 1993 the Federal Department of Transport, Communications and Energy, as the competent body deciding prior to the decision of the Federal Council, rejected the requests for provisional measures.

B. The Federal Council's decision

On 12 December 1994 the Federal Council dismissed all the objections as being unfounded and granted NOK a limited operating licence expiring on 31 December 2004. The licence was subject to compliance with various specific conditions concerning, for instance, threshold levels for radioactive substances, tests of the safeguard system, improvements of the feedwater system, a systematic programme, specific to the Beznau II nuclear power plant, for ageing surveillance and various other continuous technical improvements of the plant. NOK was also requested to submit periodically updated safety reports.

In its decision the Federal Council relied on a safety evaluation report established by the Swiss Nuclear Safety Inspectorate (Hauptabteilung für die Sicherheit der Kernanlagen – “HSK”). The report gave the results from the point of view of nuclear safety and radiation protection, including conclusions and proposals for licence conditions to be formulated in the licensing decision. The Federal Council further relied on an opinion of the Nuclear Technology and Safety Section of the Federal Energy Office, a statement of the Swiss Federal Nuclear Safety Commission (Eidgenössische Kommission für die Sicherheit von Kernanlagen – “KSA”) on basic aspects of the application and on the safety evaluation report of the HSK and the view expressed by the cantonal authorities. With regard to the complainants living in Austria, the Federal Council considered that these persons had no locus standi on the ground that they were not exposed to a significantly higher risk than that existing for the population in general, in view of the distance between the nuclear power plant and the Swiss-Austrian border. As to the remaining complainants, the Federal Council was satisfied that certain complainants lived in zone 1 around the nuclear power plant and were therefore entitled to take part in the proceedings. The Federal Council observed that although power stations built twenty years earlier certainly no longer met current technical standards, they could nonetheless be maintained and modernised so that they could continue to operate quite safely. In order to satisfy itself that this was so in the case under review, the Federal Council considered each of the objections in turn. It examined in particular the complainants' objections relating to the emergency cooling system and the residual heat removal, the emergency feed system, the reactor containment and pressure-limiting system, the fire-protection, the emergency power supply, the emergency boronising system, the control circuits and outside influences, such as plane crashes and actions by third parties. The Federal Council observed that since the Beznau II nuclear power plant had come into operation various backfittings to improve the safety of the power plant had been carried out. It referred to the emergency standby system and improved power supply system (NANO), put into operation in 1992, and the filtered containment venting system. Furthermore the results of the probabilistic safety analysis carried out at the Beznau II nuclear power plant showed that a nuclear accident was unlikely. The Federal Council gave detailed reasons why it found the objections to be unfounded and concluded that on the basis of the evidence submitted no relevant deficiencies could be established. The Federal Council further pointed out that an assessment of the organisation, management and staff situation at the Beznau II nuclear power plant presented a positive overall picture. The Federal Council further observed that by voting against the popular initiative of 23 September 1990 (see paragraphs 20-21 below) “For the Progressive Abandonment of Nuclear Energy” the Swiss people and the majority of the cantons had expressed the wish to continue using nuclear energy. With regard to the complaint based on the right to life, the Federal Council pointed out that this right was protected by the Constitution and drew attention to the position under the Federal Court's case-law, whereby only deliberate infringements could constitute a breach of that right. That did not apply to the operation of a nuclear power plant, at least so long as appropriate technical and operating procedures were adopted to prevent such an infringement and so long as these could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations. With regard to the reactor accident at Chernobyl, the Federal Council stated that the reactor of the Chernobyl nuclear power plant was technically not comparable to a light-water reactor like that of the Beznau II power plant. Furthermore the Chernobyl reactor had never undergone a safety review process as normally carried out in western countries. The Chernobyl power plant was therefore not relevant in the context of the assessment of the risks of western nuclear power plants. The Federal Council also pointed out that, in accordance with the Agreement of 10 August 1982 between the government of the Swiss Confederation and the government of the Federal Republic of Germany on mutual information on the construction and operation of nuclear installations in the vicinity of the border, the German authorities had been provided with the relevant documents relating to the requested operating licence for the Beznau II power plant. From the beginning, this subject had been discussed during the sessions of the German-Swiss Commission on the Safety of Nuclear Installations (Deutsch-Schweizerische Kommission für die Sicherheit kerntechnischer Einrichtungen – “DSK”). In its report adopted at its session held from 5 to 7 October 1994 this commission had expressed the view that, if the terms of the licence were observed, the Beznau II nuclear power plant would operate safely. There would be no risk for the population of the Federal Republic of Germany.

C. Further developments

Following the decision of the Federal Council, the Beznau II nuclear power plant, like all the Swiss nuclear installations, was subject to official surveillance by the HSK in all matters regarding nuclear safety and radiation protection. The HSK presented annual reports giving a concise evaluation of the conditions and standards of operation of the Beznau II power plant. It followed from these reports that the condition of the power plant with regard to nuclear safety and radiation protection and also to its operation had been rated as good. It followed in particular from the annual report of 1997 that the notifiable incidents which had occurred were of minor relevance to nuclear safety. Appropriate improvements had been carried out. However, further efforts were needed in order to recognise problems in the area of human behaviour and organisational management. Since 1996, the Beznau II power plant had followed an ageing surveillance programme as a permanent task for its safety-relevant plant components. The relevant documentation examined by the HSK had not revealed any safety-relevant gaps in the maintenance programmes. Furthermore, these results indicated that no unacceptable reduction in safety-related properties was to be expected in the near future. As to the requirements in connection with the operating licence of 12 December 1994 the HSK stated that all conditions which were associated with deadlines had been complied with and some conditions had in part to be updated periodically with respect to plant documentation and analyses.

From 13 November to 1 December 1995 a mission of the Operational Safety Assessment Review Team (OSART) from the International Atomic Energy Agency (IAEA) was conducted at the Beznau II power plant. The experts noted especially “the stringent requirements with regard to quality and safety, the professional qualities of the staff at all levels as well as the very satisfactory condition of the Beznau II nuclear power plant”, but recommended additional safety improvements.

On 15 December 1997 the applicants submitted an expert report of 26 November 1997 drawn up by the Institute for Applied Ecology in Darmstadt. According to that report, the licence at issue continued to tolerate the serious safety deficiencies which had already been mentioned in the institute's previous expert reports of 1992 and 1994. It was stated that the modernisation which was both technically possible and had been required in the case of pressurised water reactors of the same generation had not been carried out. All the safety systems installed at the Beznau II nuclear power plant for the purpose of preventing nuclear accidents were very seriously flawed compared with more modern pressurised water reactors in central Europe. The report criticised, for example, the safety systems for their failure to ensure that the back-up components were physically separate and protected from fire; the standard of the emergency cooling system and residual heat removal compared to modern light water pressure reactors in central Europe; the unsatisfactory emergency power supply concerning certain components that were important for the safety of the plant; the design of the emergency power supply itself with regard to back-up and separation from the main system; the emergency feed system not satisfying the standards applying to modern pressurised water reactors; the deficiency of the emergency boronated water system, the purpose of which was to ensure that the pressurised water reactor was switched off until it was cold; the reactor containment in case the active pressure-limiting process could not be carried out successfully; the design of the pressure-limiting systems themselves and the deficiency of the control circuits with regard to the back-up system, physical separation, the main and emergency power supply, the fail-safe mechanism and the production of readings. Moreover, the lack of protection against outside influences rendered the plant much more vulnerable to a plane crash or to action by third parties. In spite of the fact that it was a condition for the granting of the licence that parts of the plant be modernised, no demand had been made for an actual emergency system, such as was required for the more recent western European pressurised water reactors. The report compared the attitude adopted in the last few years to older, Westinghouse-type, first-generation pressurised water reactors by the supervisory authorities in various countries of Europe, the USA and Japan and reached the conclusion that the standards applied in the licensing procedure at issue were far below those applying in other central European countries – i.e. risks were accepted that would no longer be tolerated in other countries. The report further referred to the OSART mission which was conducted in 1995 and the criticism expressed by the experts with regard to the organisational structures and management at the Beznau II power plant. According to the report, such deficiencies not only created an increased risk of accident but gave rise to concern with regard to the effectiveness of damage limitation and emergency protection in the event of serious malfunctions at the power station.

From 30 November to 11 December 1998 a team of eleven experts of the International Regulatory Review Team (IRRT) reviewed the working methods of the HSK. During the mission six members of the team also visited the Beznau II nuclear power plant. In their report of January 1999 the reviewers identified “a number of good practices which had been recorded for the benefit of other nuclear regulatory bodies”. They also made recommendations and suggestions which indicated where improvements were necessary or desirable to further strengthen the regulatory body in Switzerland.