Last Updated on February 13, 2024 by LawEuro
European Court of Human Rights (Application no. 4976/20)
The right of access to a court was established as an aspect of the right to a fair hearing guaranteed by Article 6 § 1 of the Convention in Golder v. the United Kingdom. In that case, the Court – referring to the principles of the rule of law and the avoidance of the arbitrary exercise of power, which underlay much of the Convention – found that the right of access to a court constituted an inherent aspect of the safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court.
Furthermore, the right of access to a court must be “practical and effective”, not “theoretical or illusory”. This observation is particularly true in respect of the guarantees provided by Article 6, in view of the prominent place held in a democratic society by the right to a fair trial. For the right of access to a court to be effective, an individual must have a clear, practical opportunity to challenge an act that constitutes an interference with his or her rights, or a clear, practical opportunity to claim compensation in a court.
The Court reiterates that the access-to-court guarantees apply with the same degree of force to private disputes as they do to those involving the State. This is so because in both types of proceedings a party can be forced to bear a disproportionate financial burden in the form of covering the costs of the proceedings, which can ultimately result in a breach of that party’s right of access to a court. At the same time, the fact that one party to a dispute is a private party forms but one element to be considered when assessing the proportionality of the restriction of the right of access to a court.
However, the right of access to the courts is not absolute and may be subject to limitations that do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 of the Convention if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. For example, the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court.
As regards compensation for victims of bodily harm, the Court has held that the practical and effective nature of the right of access to a court may be impaired by limitation periods for lodging a claim. In other words, the persons concerned should be entitled to take legal action where they were actually capable of evaluating the injury sustained, and making them subject to a limitation that expired before the date on which the injury was assessed might infringe their right to a tribunal.
In the last-mentioned case that concerned a situation where one party’s right under the Convention came up against another party’s Convention rights, the Court held that the balancing of individual interests was a difficult matter and Contracting States must have a broad margin of appreciation in this respect. While it was not for the Court to interfere with the State’s policy choices aimed at striking the said balance in the context of the statute-barring of actions for damages, it could not criticise the choice according to which the domestic legal system lent greater weight to the right of victims of bodily injuries to a tribunal than to the right to legal certainty of those responsible for those injuries. It reiterated in that connection the importance that the Convention attaches to the protection of physical integrity, which falls within the ambit of Articles 3 and 8 of the Convention.
Lastly, it is not the Court’s task to express a view on whether the policy choices made by the Contracting Parties defining the limitations on the right of access to a court are appropriate or not; its task is confined to determining whether their choices in this area produce consequences that are in conformity with the Convention. Similarly, the Court’s role is not to resolve disputes over the interpretation of domestic law regulating such access but rather to ascertain whether the effects of such an interpretation are compatible with the Convention. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, the right of access to a court includes not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court.
The Court notes at the outset that the present case concerns the question of whether the applicants’ right of access to a court was infringed by the domestic courts declaring their claims for compensation to be time-barred. The applicants asserted that there were no differences between this case and the case of Howald Moor and Others – an assertion with which the Government disagreed. The Court will thus begin by comparing the factual circumstances of these two cases in the light of the parties’ arguments.
The Government noted in particular that, unlike in the case of Howald Moor and Others, the victim in the present case had not been exposed to asbestos within a professional context; rather, the applicants alleged that he had been exposed by virtue of the fact that he had lived in the vicinity of the factory and train station where material containing asbestos had been processed. While this may hold true, the Court cannot draw any inferences in respect of the applicants’ Convention rights as to whether or not the cause of the victim’s mesothelioma lay in his place of occupation. In fact, the victim in the case of Howald Moor and Others received a number of payments under the accident‑insurance system, while the victim in the present case never did, as he was not entitled to any such payments. In both cases, however, the victims’ right to the protection of their physical integrity had been at stake.
By way of highlighting a further difference, the Government also noted that the victim in the case of Howald Moor and Others had lodged his claim twenty-seven years after the end of the period during which he had been exposed to asbestos and seventeen months after being diagnosed with mesothelioma, while the victim’s heirs in the present case had done so thirty-seven years after the end of the period during which the victim had allegedly been exposed to asbestos and five years after he had been diagnosed with mesothelioma.
The Court cannot, however, overlook the fact that the victim in the present case first attempted to obtain redress by means other than bringing a civil action – namely, by lodging a criminal complaint with the investigating authority. He therefore took legal action (by lodging a criminal complaint) thirty-four years after the end of the period of his alleged exposure to asbestos and around two years after being diagnosed with mesothelioma. His heirs, in turn, lodged their claims one year after the final domestic decision dismissing his criminal complaint. Be that as it may, the differences were only mentioned by the Government in their submissions but not by the Federal Court in its decision. It follows that the Federal Court itself did not deem the differences sufficiently pertinent so as to base its reasoning on them.
The Court furthermore notes that the new absolute limitation period of twenty years is not applicable to the present case; moreover, the parties did not argue that the new limitation period was applicable. It is consequently questionable whether the differences between this case and the case of Howald Moor and Others are indeed so significant as to justify different approaches to the question of access to court. Indeed, the Court is not convinced by the Government’s arguments in this respect.
The Court reiterates that the question of the compliance by the High Contracting Parties with its judgments falls outside its jurisdiction if it is not raised within the context of the “infringement procedure” provided for under Article 46 §§ 4 and 5 of the Convention. Under Article 46 § 2, the Committee of Ministers is vested with the power to supervise the execution of the Court’s judgments and to evaluate the measures taken by respondent States. However, the Committee of Ministers’ role in the sphere of the execution of the Court’s judgments does not prevent the Court from examining a fresh application concerning measures taken by a respondent State in the execution of a judgment if that application contains relevant new information relating to issues undecided by the initial judgment. This is the situation as regards the instant case – besides having been lodged by different applicants than those in the case of Howald Moor and Others and concerning a different asbestos victim, the present case also touches upon developments that had not been addressed by the Court in the case of Howald Moor and Others.
In this regard, the Court notes the creation of the EFA Foundation in the context of execution of the judgment in Howald Moor and Others, which the Government claims to constitute a practical and non-bureaucratic means of ensuring that many of the persons concerned and/or their heirs can rapidly receive benefits. The Court furthermore notes that the circle of potential beneficiaries has recently been enlarged to include those persons whose mesothelioma manifested itself after 1996 instead of after 2006. Nonetheless, while between 120 and 200 new cases of mesothelioma are registered in Switzerland every year, the EFA Foundation has received an average of around sixty applications for benefits per year since its creation in 2017 (ibid.). It is not clear or known whether those who do not apply to the EFA Foundation do not do so because they are not eligible for benefits under its Compensation Regulations, or whether they are eligible to compensation in other ways.
As regards the applicants in the present case, the Government seem to have indicated that they could and should have applied to the EFA Foundation for benefits. The Court notes, however, that at the time of lodging their application with the Court in January 2020, they did not belong to the circle of potential beneficiaries, as the symptoms of Marcel Jann’s mesothelioma had appeared before 2006. As there is no definition of what constitutes a “hardship situation” in the Compensation Regulations of the EFA Foundation (ibid.), it is not clear whether the applicants’ situation could have fallen under the hardship clause. In any event, the applicants would also have had to withdraw their civil action – which was already pending before the domestic courts (ibid.) – and thus also bear the financial burden that the proceedings had imposed on them thus far. Furthermore, there does not seem to exist a right to obtain benefits, as an application lodged with the EFA Foundation constitutes a request made to a private-law foundation whose decisions cannot be appealed against before the courts. Moreover, one may only receive benefits from the EFA Foundation under the explicit condition that one renounces the possibility to lodge any claims in judicial proceedings (ibid.). Consequently, in the light of all this, the Court considers that the applicants cannot be reproached for not having opted to apply to receive benefits from the EFA Foundation. While the Court considers the creation of the EFA Foundation and the changes made in March 2022 to its Compensation Regulations to be positive in principle, this does not change its conclusion in the present case in view of the above-mentioned legal conditions imposed on those seeking benefits by the Compensation Regulations.
Having compared the circumstances of the two cases, and reiterating that the aim of legal certainty pursued by statutes of limitations is a legitimate aim within the meaning of the Convention, the Court will now turn to the question of whether a reasonable relationship of proportionality exists between the means employed and the aim sought. The Court cannot agree with the arguments put forward by the Government in this respect. It notes firstly that there does not seem to be a scientifically recognised maximum latency period between exposure to asbestos and the manifestation of asbestos-caused mesothelioma. According to the EFA Foundation, it can take forty-five or more years after exposure to asbestos for mesothelioma to manifest itself; the Federal Court noted that latency periods could last for between fifteen and forty-five years. It follows that it is scientifically clear and proven that the latency period for asbestos‑related mesothelioma can be relatively short or very lengthy.
The Court has already held that when it is scientifically proven that it is impossible for a person to know that he or she suffers from a certain illness, such a circumstance should be taken into account in the calculation of the limitation period. In view of the long latency periods involved, it is therefore safe to assume that asbestos-related claims will always be time‑barred in the case of a ten-year limitation period, and probably also very often in the case of a twenty-year limitation period under the new domestic provisions, if at the same time the beginning of the limitation period is linked to the harmful act in question. In other words, the persons concerned will not be entitled to take legal action at the point that they were actually capable of evaluating the injury sustained because the limitation period will have expired before the date on which the injury could have been assessed.
It is not the Court’s task to assess the policy choices made by the States defining the limitations on the right of access to a court, its task being confined to determining whether their choices in this area produce consequences that are in conformity with the Convention. The Court notes that as a result of the determination of the dies a quo in the present case in line with the case-law of the Federal Court, the applicants did not have their claims for compensation examined materially. This would also be the case under the new statute of limitations if the same manner of determining the dies a quo is maintained. In fact, the question is not so much whether a ten-year or twenty-year or thirty-year or even longer absolute limitation period can, in theory, be in compliance with the Convention; rather, the determining issue is whether the application thereof – which involves the determination of the point in time at which a limitation period begins, as well as any possible suspension of the running of the limitation period – produces consequences that are in compliance with the Convention. The Court finds it significant that the legislature was well aware that amending the law alone could not solve the problem encountered in cases like the present one and that the domestic courts, first and foremost the Federal Court, would have to contribute to finding a solution in practice. It notes however that the Federal Court has explicitly held that it maintains its case-law as regards the interpretation of the limitation period and the manner of determining the dies a quo.
Moreover, the Court reiterates that – as regards the requisite balancing exercise between the victim’s right of access to the courts and the defendant’s right to legal certainty – it could not criticise the choice according to which the domestic legal system lent greater weight to the right to a tribunal of victims of bodily injuries than to the right to legal certainty of those responsible for those injuries. In the present case, a contrary situation applied – despite the fact that the victim could for a long time not even have known that he had suffered damage. The Court can therefore not agree that the applicants’ right of access to a court has been practical and effective, in view of the manner of determining the dies a quo in respect of the running of the absolute limitation period. There does not seem to be a reasonable relationship of proportionality between the means employed and the aim sought. The domestic courts limited the applicants’ right of access to a court in such a way that the very essence of their right has been impaired. It follows that the State overstepped its margin of appreciation. There is consequently no reason to depart from the Court’s reasoning in the judgment that it delivered in respect of the case of Howald Moor and Others.
The foregoing considerations are sufficient to enable the Court to conclude that despite the fact that the case is marked by a certain degree of complexity, the State did not comply with its duty to ensure that the proceedings before the Federal Court were conducted within a reasonable time. It is consequently not necessary to examine whether what was at stake for the applicants required a particular degree of expedition. There has accordingly been a violation of Article 6 § 1 of the Convention on account of the length of proceedings.
CASE OF JANN-ZWICKER AND JANN v. SWITZERLAND (European Court of Human Rights) 4976/20. Full text of the document.
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