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**ЕВРОПЕЙСКИЙ СУД ПО ПРАВАМ ЧЕЛОВЕКА**
**БОЛЬШАЯ ПАЛАТА**
**ДЕЛО "АФАНАССОГЛУ (ATHANASSOGLOU)**
**И ДРУГИЕ ПРОТИВ ШВЕЙЦАРИИ"**
**(Жалоба N 27644/95)**
## Статья 679
##
Indeed the majority have not challenged the principle that judicial review should lie, but have made it contingent on the existence of an arguable claim relating to the exercise of (civil) rights recognised in domestic law (see paragraph 54 of the judgment). Nor did they deny that such rights - for example the rights to life, to physical integrity and of property - were available to the applicants in the instant case under the Swiss legal order (see paragraph 55 of the judgment). However, they considered that the proceedings before the Federal Council did not "determine" a dispute (contestation) over those rights (loc. cit.), as, in their view, the link between the Council's decision and the applicants' rights was too tenuous and remote (see paragraph 46 of the judgment). In reaching that conclusion, they referred in paragraph 51 to the finding in the Balmer-Schafroth and Others v. Switzerland judgment of 26 August 1997 (Reports of Judgments and Decisions 1997-IV) and, in particular, paragraph 40 thereof, that the applicants had failed to show that the operation of the power plant had exposed them personally to a danger that was not only serious but also specific and, above all, imminent. The majority added (see paragraph 48 of the judgment) that the applicants' arguments had to be sufficiently tenable.
One might of course question whether it is possible to establish that the danger exists to the requisite degree. For example, it is virtually impossible to prove imminent danger in the case of inherently dangerous installations: the catastrophes that have happened in a number of countries were obviously unforeseeable or, in any event, unforeseen.
That, however, is not the fundamental issue. Without judicial review, the executive's decision could not be challenged before the domestic courts. To our minds, it was for the domestic courts to assess whether the applicants had established a sufficiently close link between the operation of the power plant and their rights, in particular to life and to physical integrity. By substituting its own (judicial) assessment for that of a non-existent domestic court, we consider that our Court has effectively reversed the subsidiarity principle on which its case-law is largely based. It has in effect acted as a court of first instance; yet paragraph 51 of the judgment, for instance, shows the extent to which the analysis which the Court had to carry out was of a technical nature. By allowing a governmental body to act as both judge and party, it has not taken the principle of the rule of law expressed in the Preamble to the Convention to its logical conclusion. It is obviously prudent to avoid an actio popularis. It is in our view, however, preferable for the national courts who are better placed, rather than the European Court, to decide whether appeals such as the applicants' amount to that type of action.
Like considerations lead us, mutatis mutandis, to consider that Article 13 was applicable in the instant case. The claim was arguable and an effective remedy should therefore have existed. Filing an objection with the Federal Council, from which body no appeal lay, did not constitute such a remedy.
For these reasons, we have voted against the opinion of the majority on these two points.