EHRM 130224 overschrijding redelijke termijn met 6 jaar, vergoeding € 20.000,00 in respect of non-pecuniary damage

EHRM 130224 asbest; absolute verjaringstermijn van 10 jaar (CH) i.s.m. art. 6 EVRM
- overschrijding redelijke termijn met 6 jaar, vergoeding € 20.000,00 in respect of non-pecuniary damage

2. Merits
   1. Submissions by the parties

(a)  The applicants

51.  The applicants insisted that their right of access to a court had been violated on account of the absolute limitation period set out by the former (and the new) domestic legislation, given the long latency period that characterised asbestos-related illnesses. The impugned domestic judgments had systematically applied the provisions of that legislation without taking into account the circumstances of Marcel Jann – despite the fact that his case had concerned mesothelioma, which could often only be detected after a latency period of twenty-five or more years – at the earliest shortly before the onset of that illness.

52.  The proceedings in respect of the present case had been limited to the question of the application of the statute of limitations. The argument that the case had become statute-barred had therefore constituted a procedural obstacle that had denied the complainants access to a court. The applicants’ case had not been judged materially owing to that obstacle; consequently, their right of access to a court had been impaired. The applicants further pointed out that the Government had correctly not argued that there had been no legal basis under domestic legislation for claims for damages arising from the causing of unlawful bodily harm.

53.  In the applicants’ view, the Federal Court had disregarded the judgment in Howald Moor and Others (cited above). Furthermore, the Federal Court had noted that it had not amended its practice in cases of late‑onset damage caused by exposure to asbestos. The applicants further took issue with the Federal Court’s view that it “could not infer from the judgment in Howald Moor and Others (cited above) that absolute limitation periods – in the sense of a general substantive rule – should be excluded and that a claim lodged thirty-seven years after the [causing of] alleged damage should still be accepted [for examination]”. They also referred to several articles published in the legal literature discussing different possible ways of interpreting domestic legislation, such as a different determination of the dies a quo or a suspension of the running of the limitation period under Article 134 § 1 (6) of the Code of Obligations (see paragraph 43 above).

54.  The applicants maintained that the absolute limitation period did not pursue a legitimate purpose in cases involving damage caused by exposure to asbestos, as it rendered it impossible for victims to lodge claims after their becoming aware of such damage. They further questioned whether the restrictive nature of the statute of limitations was proportionate to the aim of protecting the debtor; they submitted that the Government had failed to recognise that the Court had never provided a maximum limitation period in any of its decisions, and that the Court was not concerned with specific time limits but rather with ensuring that people who had suffered bodily injury could have their claims examined by domestic courts. The applicants further reiterated that Marcel Jann had lodged his claim only a short time after he had become aware that he was suffering from an asbestos-related disease and about thirty-four years after his last exposure to asbestos. An absolute time limitation of ten years – and now twenty years following the above‑mentioned legislative reform (see paragraph 31 above) – was generally disproportionate in view of the lateness of the onset of the damage suffered by asbestos victims.

55.  As regards the EFA Foundation, the applicants submitted that the possibility for asbestos victims to claim benefits from it did not provide redress for the Convention violation; moreover, the Federal Court had never asserted that the benefits disbursed by the EFA Foundation constituted such redress. On the one hand, there was no legal or enforceable right to those benefits; on the other hand, the applicants would have to explicitly renounce their right to benefits under domestic law and to the judicial enforcement thereof. In any event, Marcel Jann’s heirs would not be able to benefit from the EFA Foundation, as his illness had manifested itself before 2006. Moreover, the EFA Foundation did not offer a solution for any other person who had become ill before 2006. Once the circle of possible beneficiaries of the EFA Foundation had been enlarged by the inclusion of those persons in whose cases the disease manifested itself after 1996 (and not only after 2006 – see the changes adopted to the Compensation Regulations in March 2022 in paragraph 35 above), the applicants maintained that any possible benefits they might receive would be much lower than what they could claim under civil law. In addition, they would have to withdraw the claims that they had already lodged with the courts, which would mean that the legal costs they had incurred thus far would have been lost. In summary, they had no intention of applying to receive benefits from the EFA Foundation.

56.  The applicants concluded that there were no differences between their case and that of Howald Moor and Others (cited above) that would justify a deviation from the Court’s findings in the latter case. The applicants (and other similarly affected persons) had de facto been denied access to a court (in violation of Article 6 § 1 of the Convention) on account of the interpretation of the underlying provisions under which claims lodged by injured persons could become time-barred before the persons concerned could objectively have become aware of the damage that they had incurred.

(b)  The Government

57.  The Government denied that there had been an interference with the very essence of the applicants’ right of access to a court in view of the in-depth analysis carried out by the domestic courts. The applicants had not been prevented from lodging their complaints at several levels of jurisdiction. The two cantonal courts had examined the arguments submitted by the applicants and had concluded that their claims had become time-barred in view of the absolute statute of limitations. The Federal Court had also examined the question of limitation periods in the light of its own case-law and the relevant legal literature, as well as of the Convention and the Court’s case-law – in particular the judgment that it had delivered in respect of the case of Howald Moor and Others (cited above). In sum, the Government, referring to Markovic and Others v. Italy ([GC], no. 1398/03, §§ 105 and 115, ECHR 2006-XIV), were of the opinion that the applicants had had access to a court – even though the examination of their case by the domestic courts had been limited by the fact that one of the substantive preconditions had not been met.

58.  The Government also noted that in its judgment delivered in respect of the case of Howald Moor and Others (cited above, § 72, with further references) the Court had reiterated the legitimate aim of limitation periods. The legislature had taken into account that aim by prescribing the limitation periods set out in Articles 60 § 1 and 130 § 1 of the Code of Obligations (see paragraphs 38-39 above). The fact that in respect of illnesses with a long latency period a claim could become time-barred (under certain conditions) even before the injured person in question discovered that he or she was suffering from such an illness was ultimately inherent in a system in which national laws provided an absolute limitation period. Such absolute limitation periods were not excluded in the light of the Court’s case-law.

59.  As regards the question of proportionality, the Government referred to the Federal Court’s judgment in the present case (see paragraphs 26-27 above) in which it had concluded that it was not disproportionate to consider as time-barred a claim that had not been lodged until some thirty-seven years after the last possible moment at which the harmful act in question had occurred. The Federal Court had taken into consideration the fact that in the present case, thirty-seven years had passed between the harmful act in question (the applicant’s exposure to asbestos in 1972 at the latest) and the lodging of a claim in July 2009. That fact was also what set this case apart from that of Howald Moor and Others (cited above) in which twenty-seven years had passed between the end of the exposure of the applicant in that case to asbestos in 1978 and the lodging of a claim in 2005. Even the original legislative amendment proposed by the Federal Council of thirty years as the absolute limitation period (see paragraph 28 above) would not have sufficed for the instant case not to have been statute-barred, while (by contrast) it would have sufficed in the case of Howald Moor and Others (cited above). The Government further emphasised the fact that almost five years had elapsed between the discovery of the illness and the lodging of a claim and almost three years between Marcel Jann’s death and the lodging of a claim – as opposed to only seventeen months in the case of Howald Moor and Others (cited above). Furthermore, in one case, the relative limitation period of three years would have been respected, whereas in the other it would not. Therefore, even with an absolute limitation period of forty years, the applicants’ claim would still have been time-barred because it had been lodged more than three years after the discovery of the illness. Another difference between the present case and that of Howald Moor and Others (cited above) lay in the fact that Marcel Jann had never been exposed to asbestos in the course of his professional activities, unlike the victim in the case of Howald Moor and Others (cited above).

60.  The Government also referred to another judgment of the Federal Court that had also been delivered on 6 November 2019 (see paragraph 45 above) in which that court had arrived at a different conclusion after analysing the precise circumstances of that other case. In particular, the Federal Court had held in that case that – provided that no adequate protective measures had been taken for the entire duration of the employment relationship (a question that would have to be re-examined at the previous level of jurisdiction) – the claims in question had not become absolutely time-barred. The Government submitted that that clarification had therefore led to an extension of the absolute limitation period in that case (and in similar cases), which demonstrated that the Federal Court had examined in each case the proportionality of the application of limitation periods.

61.  The Government furthermore noted the extension of the absolute limitation period to twenty years in the event of death or bodily injuries and the setting-up of the EFA Foundation (see paragraphs 31-34 above). When drawing up those solutions for asbestos victims, the legislature had carefully weighed the interests involved – that is, the interests of asbestos victims against (i) the interests of potential defendants in not being indefinitely faced with the possibility of complaints being lodged even after a very long time had elapsed and (ii) the interests of the public in legal certainty. The Government stated that the legislature enjoyed in this area a certain margin of appreciation. They stressed that the applicants had not tried to obtain compensation from the EFA Foundation on the basis of the “hardship clause” (see paragraph 34 above); nor had they tried to obtain compensation from the EFA Foundation on the basis of the circle of possible beneficiaries having been enlarged by the inclusion of those persons in whom the disease had become apparent only after 1996 (and not only after 2006 – see the changes made to the Compensation Regulations in March 2022 in paragraph 35 above). They also referred to the general measures taken in response to the Court’s judgment in the case of Howald Moor and Others (cited above), on the basis of which the Committee of Ministers had ended its supervision of the execution of that judgment (see paragraph 37 above).

62.  The Government considered that it was essential to bear in mind the fact that the system of social insurance in Switzerland already permitted the large-scale compensation of asbestos victims and their relatives. Furthermore, other possibilities to obtain reparation (including obtaining reparation from the EFA Foundation) should also be taken into account. Between 2017 and November 2021, the EFA Foundation had provided financial support in over 100 cases of mesothelioma, and over 150 persons had been helped and advised by its “Care-Service” (that is, a service providing those concerned and their families with advice and answers to questions). Over CHF 10,000,000 had been allocated. That demonstrated that it constituted a simple and rapid mechanism. The applicants had however deliberately omitted to lodge a request with the EFA Foundation.

63.  Lastly, the Government maintained that the applicants’ complaint was of a fourth-instance nature and that it was not the Court’s task to deal with errors of fact or law allegedly committed by a national court unless and in so far as such errors might have infringed rights and freedoms protected by the Convention.

2. The Court’s assessment

(a)  General principles established in the Court’s case-law

64.  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 (21 February 1975, §§ 28-36, Series A no. 18). 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 (see Grzęda v. Poland [GC], no. 43572/18, § 342, 15 March 2022, and Zubac v. Croatia [GC], no. 40160/12, § 76, 5 April 2018, with further references).

65.  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 (ibid., § 77, with further references). 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 (see Bellet v. France, 4 December 1995, § 36, Series A no. 333-B), or a clear, practical opportunity to claim compensation in a court (compare Georgel and Georgeta Stoicescu v. Romania, no. 9718/03, §§ 74-76, 26 July 2011).

66.  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 (see Čolić v. Croatia, no. 49083/18, § 53, 18 November 2021, with further references).

67.  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 (see Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016, with further references). 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 (see Zubac, cited above, § 98, with further references).

68.  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 (see, for example, Howald Moor and Others, cited above, §§ 79-80, and Eşim v. Turkey, no. 59601/09, §§ 25-26, 17 September 2013). 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 (see Sanofi Pasteur v. France, no. 25137/16, § 53, 13 February 2020).

69.  In the last-mentioned case that concerned a situation where one party’s right under the Convention (the applicant company’s right to legal certainty) came up against another party’s Convention rights (namely, the victim’s right to a tribunal), the Court held that the balancing of individual interests (which could well contradict each other) 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 (ibid., §§ 55-58).

70.  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 (see Zubac, cited above, § 81, with further references). 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 (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, §§ 86 and 89, 29 November 2016, with further references).

(b)  Application of these principles to the present case

(i)     Factual circumstances of the present case in comparison with those in the case of Howald Moor and Others

71.  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 (cited above) – 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.

72.  The Government noted in particular that, unlike in the case of Howald Moor and Others (cited above), 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 (see paragraph 5 above). 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 (cited above) received a number of payments under the accident‑insurance system (ibid., § 12), 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.

73.  By way of highlighting a further difference, the Government also noted that the victim in the case of Howald Moor and Others (cited above) 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 (with almost three years elapsing between the victim’s death and the lodging of the claim – see paragraph 59 above).

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 (see paragraph 9 above). 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 (see paragraphs 12-13 above). 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 (see paragraphs 26‑27 above).

74.  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 (cited above) 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.

(ii)   New developments in the form of the EFA Foundation and the applicants’ choice not to apply to it

75.  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 (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 33, ECHR 2015, with further references). 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 (cited above) 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 (cited above).

76.  In this regard, the Court notes the creation of the EFA Foundation (see paragraph 33-34 above) in the context of execution of the judgment in Howald Moor and Others (cited above), 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 (see paragraph 35 above). Nonetheless, while between 120 and 200 new cases of mesothelioma are registered in Switzerland every year (see the different figures mentioned in paragraph 36 above), 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 (see paragraphs 34-35 above), or whether they are eligible to compensation in other ways.

77.  As regards the applicants in the present case, the Government seem to have indicated (see paragraphs 61-62 above) 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 (see paragraph 34 above). 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 (in the event, for example, that a request is refused). 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 (see paragraph 35 above) 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.

(iii)  The question of reasonable relationship of proportionality

78.  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 (see Howald Moor and Others, cited above, § 77), the Court will now turn to the question of whether a reasonable relationship of proportionality exists between the means employed and the aim sought (see Baka, cited above, § 120). 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 (see paragraph 36 above); the Federal Court noted that latency periods could last for between fifteen and forty-five years (see paragraph 44 above). It follows that it is scientifically clear and proven that the latency period for asbestos‑related mesothelioma can be relatively short or very lengthy.

79.  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 (see Howald Moor and Others, cited above, § 78). In view of the long latency periods involved (see paragraphs 36, 44 and 78 above), 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 (see paragraphs 31 and 41-42 above), if at the same time the beginning of the limitation period (dies a quo) is linked to the (end of 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 (see Sanofi Pasteur, cited above, § 53).

80.  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 (see Zubac, cited above, § 81). 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 (dies a quo), 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 (see paragraph 32 above). 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 (see paragraphs 26 and 45 above).

81.  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 (within 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 to a tribunal of victims of bodily injuries than to the right to legal certainty of those responsible for those injuries (see Sanofi Pasteur, cited above, §§ 55-58). 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 (see paragraph 70 above). 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 (cited above, §§ 74-80; see also paragraphs 73-74 above).

(iv) Conclusion

82.  The foregoing considerations are sufficient to enable the Court to conclude that in the exceptional circumstances that pertain to victims of asbestos exposure (in this regard, see also SAS IVECO FRANCE v. France (dec.), no. 50018/17, §§ 33-44, 1 February 2022, where the Court accepted as Convention-compliant a specific evidentiary regime that applied to claims for compensation for anxiety-related harm caused to asbestos victims – notably the making of presumptions in favour of the asbestos victims that could be rebutted by demonstrating the existence of “grounds for exoneration from liability”), the application of the absolute limitation periods by the domestic courts – in particular the manner of determining the dies a quo in respect of the running of the absolute limitation period – resulted in the applicants’ right of access to a court being restricted to the point that the very essence of that right had been impaired.

83.  There has accordingly been a violation of Article 6 § 1 of the Convention.

 

2. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE LENGTH OF PROCEEDINGS

84.  The applicants complained of the length of the domestic proceedings, which they considered excessive and therefore in breach of Article 6 § 1 of the Convention, which reads as follows.

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

1. Admissibility

85.  The Government submitted that the complaint in respect of the length of the proceedings before the two cantonal courts was inadmissible for non-exhaustion of domestic remedies (see paragraph 91 below).

86.  The applicants acknowledged that they had not complained before the Federal Court of the allegedly excessive length of time that each of the individual procedural steps taken by the cantonal courts had lasted; rather, in their submissions to the Court they had contested the efficiency of that remedy and had argued that this circumstance was nonetheless noteworthy when assessing the overall length of the proceedings (see paragraph 90 below).

87.  The Court considers that the Government’s objection raises issues that are closely linked to the merits of the applicants’ complaint, as normally the whole of the proceedings in question must be taken into consideration (see König v. Germany, 28 June 1978, § 98 in fine, Series A no. 27). It therefore decides to join the objection to the examination on the merits. It furthermore notes that the complaint is neither manifestly ill‑founded nor inadmissible on any of the grounds listed in Article 35 of the Convention and therefore declares it admissible.

2. Merits
   1. Submissions by the parties

(a)  The applicant

88.  The applicants complained of the allegedly excessive length of the domestic proceedings – notably those before the Federal Court. They noted that they themselves had requested a suspension of the proceedings before the Federal Court until an outcome was reached in the case of Howald Moor and Others (cited above) then pending before the Court, so as to avoid a negative decision being delivered by the Federal Court. However the Federal Court had ordered the suspension of the proceedings on 8 April 2014 – that is, only after the judgment in respect of Howald Moor and Others (cited above) had been delivered. Furthermore, at that time it had already been known that the draft legal provisions then being discussed in Parliament did not include any transitional provisions; in any event, such provisions would have been of no use to the applicants as a new absolute limitation period of a maximum thirty years had from the start of the legal process of reforming the statute of limitations been the length of time under discussion (see paragraph 28 above). The Federal Court had thus accepted that the proceedings would be delayed for several years; in the event, they had been delayed for more than four and a half years.

89.  The applicants further emphasised that on 30 June 2014 they had lodged a request for the decision to suspend the proceedings to be reconsidered, and for the proceedings to be resumed (see paragraph 21 above). They had argued that new laws could not be applied retroactively and that awaiting the outcome of parliamentary discussions regarding a proposed legal reform – a process that often lasted years in Switzerland – constituted an inadmissible delay in proceedings that was contrary to the Convention and thereby constituted a denial of justice within the meaning of Article 6 § 1 of the Convention. Their request had, however, been refused on 3 July 2014 (see paragraph 22 above). Any further request that the proceedings be resumed would have been futile after that refusal. After the legislature had enacted the reform of the statute of limitation on 15 June 2018 (see paragraph 23 above), the applicants had again requested the resumption of proceedings on 31 August 2018 (see paragraph 24 above). The Federal Court had eventually resumed the proceedings on 6 November 2018 (see paragraph 25 above) – that is, almost five months after Parliament had enacted the new domestic provisions. The applicants also considered it untenable that the Federal Court had needed another seven months to reach a decision after the last submissions had been lodged by the parties – particularly given that there had been no change in the factual or legal situation compared to the judgment in Howald Moor and Others (cited above) (that is to say their situation had been exactly the same as that faced by the applicants in Howald Moor and Others – the same facts and the same laws had applied). Furthermore, this had forced the applicants into lodging an application with the Court because the Federal Court had insisted on adhering to its own time-limit practice, even though that practice had been contrary to the Convention.

90.  As regards the Government’s objection (see paragraph 91 below) that the applicants had not lodged any complaint with the Federal Court regarding the length of each of the individual procedural steps taken by the cantonal courts, the applicants conceded that that was true; however, they considered the remedy provided by section 100(7) of the Federal Act on the Federal Court (see paragraph 40 above) to be ineffective, as domestic legislation and case-law did not provide that any sanction should be imposed in the event of unlawful dismissals of or delays in issuing a decision. Instead, the proceedings would remain suspended at the lower level of jurisdiction during the time that a complaint regarding an alleged unlawful dismissal of or delay in issuing a decision was being assessed. Furthermore, the fact that it had taken more than four years simply for the question regarding the statute of limitations to be examined by cantonal courts at two levels of jurisdiction meant that it could not be considered that this matter had been dealt with “within a reasonable time”. That circumstance was noteworthy when assessing the overall length of the proceedings. The applicants lastly argued that the Court took into account in its case-law the overall length of the proceedings. Consequently, even though the length of each of the individual procedural stages had not been challenged, what was decisive for the assessment of the question of “reasonable time” within the meaning of Article 6 § 1 of the Convention was the overall length of the proceedings. The applicants concluded that this requirement had not been complied with in the present case.

(b)  The Government

91.  The Government argued that the applicants had not complained of the allegedly unreasonable length of the cantonal proceedings before the Federal Court, even though they could have done so under section 100(7) of the Federal Act on the Federal Court (see paragraph 40 above). Consequently, that part of their complaint was inadmissible before the Court for non‑exhaustion of domestic remedies. The Government further considered that in any event, the fact that it had taken slightly more than four years for the question regarding the statute of limitations to be examined at two cantonal levels of jurisdiction could not be regarded as excessive.

92.  As regards the length of proceedings before the Federal Court, the Government submitted that the period of one year between the resumption of the proceedings and the delivery of the final judgment had constituted a particularly short time, given the fact that there had been two exchanges of observations. Concerning the suspension of the proceedings, the Government stressed that it was the applicants themselves who, on 6 November 2013 (see paragraph 19 above), had requested that the proceedings be suspended until the delivery of a decision by the Court in the case of Howald Moor and Others (cited above). On 11 March 2014 the Court had delivered its judgment in the latter case. Subsequently the Federal Court had decided on 8 April 2014 that it was reasonable to await the legal reform of the statute of limitations which had then been pending in Parliament (see paragraph 20 above). The applicants’ request of 30 June 2014 that the suspension of the proceedings be reconsidered had been refused by the Federal Court on 3 July 2014 (see paragraphs 21-22 above). After that date the applicants had not undertaken any further steps with a view to having the suspension of the proceedings lifted, even though they could have done so at any time. It had only been on 31 August 2018 (after the conclusion of the parliamentary debates regarding the proposed amendment to the statute of limitations) that the applicants had again requested that the proceedings be resumed (see paragraph 24 above). The four defendants had then been able to submit their positions regarding the applicants’ request (on 20, 24 and 25 September and 15 October 2018, respectively), arguing that the suspension of the proceedings should continue until the entry into force of the new legal provisions (ibid.). The proceedings had eventually been resumed on 6 November 2018 on the grounds that the reasons for the suspension were no longer valid (see paragraph 25 above). It followed that – contrary to the applicants’ assertions – the Federal Court had reacted immediately after being appraised by the four defendants of their respective positions.

93.  In the Government’s view, the then on-going legal reform had potentially been decisive for the outcome of the present case – notably as regards the room for manoeuvre available to the Federal Court in its interpretation of the applicable limitation period. Moreover, until the end of the outcome of the above-mentioned parliamentary discussions regarding a proposed legal reform, it had not been possible to predict whether Parliament would include transitional provisions that would cover those falling under the old statute of limitations and if so, in what form. Furthermore, the fact that the EFA Foundation had been set up had also been decisive for the suspension. The suspension of the proceedings had, at that time, potentially been in the interests of the applicants, as the Federal Court could have simply rejected their complaints as time-barred under the law as then in force. It had, however, not been completely excluded that Parliament would provide an exception to the principle of non-retroactivity that would have benefitted the applicants.

94.  Lastly, the Government noted that the applicants had lodged purely financial claims on behalf of the deceased Marcel Jann. Given what had been at stake for them, the instant case therefore differed from others in which the Court had found that the suspension of proceedings had not been justified under the specific circumstances of those cases (see König, cited above, §§ 110-111), or in which the Court had found that the suspension of the proceedings had been excessively lengthy (see Rezette v. Luxembourg, no. 73983/01, § 32, 13 July 2004). The Government concluded that the present case had been particularly complex, with four different defendants – all of whom had been represented by different lawyers. Apart from the suspension of the proceedings before the Federal Court, there had not been any inactive phase during the domestic court proceedings. In the light of all the relevant criteria, the overall length of the proceedings over three levels of jurisdiction – from the introduction of the complaint on 6 July 2009 until the Federal Court’s ruling of 6 November 2019 – appeared reasonable.

2. The Court’s assessment

(a)  General principles established in the Court’s case-law

95.  The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and in accordance with the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities, and what was at stake for the applicant in the dispute (see, among many others, Lupeni Greek Catholic Parish and Others, cited above, § 143). Long periods during which the proceedings stagnate without explanations can be in breach of Article 6 § 1 of the Convention (see Beaumartin v. France, 24 November 1994, § 33, Series A no. 296-B). The person concerned is required only to show diligence in carrying out the procedural steps relating to him, to refrain from using delaying tactics and to avail himself of the scope afforded by domestic law for shortening the proceedings. He is under no duty to take action that is not apt for that purpose (see Unión Alimentaria Sanders S.A. v. Spain, 7 July 1989, § 35, Series A no.157).

96.  In civil proceedings, the “reasonable time” referred to in Article 6 § 1 of the Convention normally begins to run from the moment at which proceedings were instituted before the relevant court (see Bock v. Germany, 29 March 1989, § 35, Series A no. 150, and Poiss v. Austria, 23 April 1987, § 50, Series A no. 117). As to when the period in question ends, it normally covers the whole of the proceedings in question – including appeal proceedings (see König, cited above, § 98 in fine) and extends right up to the decision which disposes of the dispute (see Poiss, cited above, § 50).

(b)  Application of these principles to the present case

97.  The Court notes at the outset that the applicants in essence complained of the allegedly excessive length of the proceedings before the Federal Court – most notably the protracted suspension thereof, rather than the length of the proceedings before the cantonal courts (which they nevertheless considered noteworthy when assessing the overall length of the proceedings). The Government on the other hand considered the suspension of the proceedings before the Federal Court to have been justified and the length of the proceedings before it reasonable, although they also conceded that there had been a phase of inactivity on the part of the Federal Court. They further argued that the case had been particularly complex and that only claims of a pecuniary nature had been at stake for the heirs of the deceased.

98.  As regards the period to be taken into consideration, the Court notes that it began on 16 July 2009 (when the applicants brought proceedings before the Glarus Cantonal Court – see paragraph 14 above) and ended on 6 November 2019 (when the Federal Court issued its decision regarding the applicants’ claims – see paragraph 26 above). It therefore lasted ten years and almost four months, over three levels of jurisdiction. The Court furthermore notes in this regard that the period of the proceedings that took place before the highest domestic court began on 6 November 2013 (when the applicants appealed to the Federal Court – see paragraph 19 above) and ended on 6 November 2019 (with the delivery of the latter’s decision). The proceedings before the Federal Court thus lasted exactly six years.

99.  As regards the reasonableness of the length of the proceedings, the Court can agree with the Government that the case was somewhat complex. It can further agree that, besides the suspension of the proceedings before the Federal Court from 8 April 2014 until 6 November 2018 (see paragraphs 20‑25 above), no other real phase of judicial inactivity can be detected from the material in the case-file, and nor has any such inactivity been indicated by the applicants. The question therefore arises whether the suspension for a period of four years and almost seven months was in compliance with the requirement that cases be heard within a “reasonable time” within the meaning of Article 6 § 1 of the Convention. For the below-stated reasons, the Court considers that – simply taken alone – the proceedings before the Federal Court in themselves did not comply with the standards set out under Article 6 § 1 of the Convention. It follows that even if the applicants had availed themselves of the above-noted remedy under section 100(7) of the Federal Act on the Federal Court (see paragraph 40 above) in respect of the proceedings before the cantonal courts, the length of the proceedings before the Federal Court would still have been excessive. In view of this conclusion, there is no need to examine the Government’s non‑exhaustion objection in relation to the proceedings before the cantonal courts (see paragraphs 85 and 91 above).

100.  While the Government argued that the applicants had requested the resumption of the proceedings only once and that they could have lodged another request to this end at any time but that they had not done so (see paragraph 92 above), the Court notes that it is the duty of the State to ensure that proceedings are conducted within a reasonable time (see, mutatis mutandis, Mincheva v. Bulgaria, no. 21558/03, § 68, 2 September 2010, within the context of delaying tactics used by one of the parties). Similarly, even in legal systems that apply the principle that the procedural initiative lies with the parties, the parties’ attitude does not dispense the courts from the duty of ensuring that any trial is conducted expeditiously, as required by Article 6 § 1 of the Convention (see Sürmeli v. Germany [GC], no. 75529/01, § 129, ECHR 2006-VII, with further references). It was consequently incumbent on the Federal Court to ensure compliance with this obligation. However, the Federal Court made it very clear that it would await the outcome of the legislative reform then being discussed in Parliament before deciding on the present case (see paragraphs 20 and 22 above). The applicants can therefore not be reproached with the fact that they did not lodge any further requests for the proceedings to be resumed while the legal reform was still under discussion in Parliament, as they could reasonably assume that another such request would be futile (see, mutatis mutandis, Unión Alimentaria Sanders S.A., cited above, § 35, which reiterated the principle that the person concerned is under no duty to take action that is not apt for the purpose of shortening the proceedings).

101.  The Court is mindful of the explanations submitted by the Government for the lengthy suspension of the proceedings before the Federal Court (see paragraph 93 above). It is, however, unable to agree that it was indeed necessary to wait for the outcome of the above-mentioned parliamentary discussions before resuming the proceedings; for the Court to indicate that it was indeed necessary would be to suggest that such a wait will be necessary every time a claim is lodged that concerns an area of law in respect of which Parliament is considering proposals for legislative amendments. The additional argument put forward by the Government that the EFA Foundation had been in the process of being formed at the same time (see paragraph 93 above) is not convincing either, as this development occurred only after February 2015 (when the round table took place – see paragraph 33 above), while the applicants had already requested in June 2014 that the decision to suspend the proceedings be reconsidered (see paragraph 21 above) – a request that the Federal Court had refused in July 2014 (see paragraph 22 above). Even if one were to take into account the proposal of the Legal Affairs Committee of the National Council for the creation of a special compensation fund for asbestos victims whose claims were time-barred, that proposal was only made in August 2014 (see paragraph 29 above) – that is, after the Federal Court had refused the applicants’ request that the decision to suspend the proceedings be reconsidered. The EFA Foundation was not mentioned by the Federal Court in its decision of April 2014 to suspend the proceedings (see paragraph 20 above); nor did the Federal Court mention the EFA Foundation in its decision of July 2014 refusing the applicants’ request that the decision to suspend the proceedings be reconsidered (see paragraph 22 above). Indeed, it could not have been referred to in those decisions, as the EFA Foundation was only created in 2017.

102.  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 (see, for example, Frydlender v. France [GC], no. 30979/96, § 44, ECHR 2000-VII, concerning a delay of nearly six years between the matter in question being referred to the French Conseil d’Etat and the delivery of its judgment; see also Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 22, ECHR 2000-IV, which concerned delays on the part of the judicial authorities of one year and seven months and of four years and eight months). It is consequently not necessary to examine whether what was at stake for the applicants required a particular degree of expedition.

103.  There has accordingly been a violation of Article 6 § 1 of the Convention on account of the length of proceedings.

3. APPLICATION OF ARTICLE 41 OF THE CONVENTION

104.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1. Damage

105.  The applicants claimed CHF 90,000 (approximately 94,300 euros (EUR)) in respect of pecuniary damage. They maintained that even if their demands were to prevail regarding the question of the statute of limitations, they would still have suffered damage amounting to approximately that sum, which comprised CHF 85,545 for their lawyer’s fees in respect of the domestic proceedings (around two hundred and fifty hours of work in respect of the civil litigation) and CHF 4,585 for the loss of the interest that they would have realised on the capital that they had advanced to cover court costs. The applicants further claimed CHF 50,000 (approximately EUR 52,400) in respect of non-pecuniary damage, which had been caused mainly by the denial of justice from which they had suffered for years and by their having been confronted time and again with the memory of the painful fate of their late husband and father.

106.  The Government did not discern any causal link between a possible finding of a violation and the loss of the interest that they would have realised on the capital that they had advanced to cover court costs (in the amount of CHF 4,585). They further considered that the finding of a violation of Article 6 § 1 of the Convention constituted sufficient redress in respect of non-pecuniary damage. Should the Court nonetheless make an award in this respect, the Government, referring to Howald Moor and Others (cited above, § 87), considered that a maximum award of CHF 15,000 jointly to the applicants would be appropriate in respect of non-pecuniary damages.

107.  The Court will consider the amount of CHF 85,545 claimed by the applicants for their lawyer’s fees in respect of the domestic proceedings under the heading of “costs and expenses” (see paragraphs 108-110 below), in line with its usual practice. As regards the remaining amount of CHF 4,585 claimed in respect of pecuniary damage, it does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicants jointly EUR 20,800 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

2. Costs and expenses

108.  In addition to their claim of CHF 85,545 for the costs and expenses incurred before the domestic courts (see paragraph 105 above), the applicants also claimed a total of CHF 57,563 (approximately EUR 59,520) for the costs and expenses incurred before the Court. They noted that their lawyer had spent a total of 157.2 hours at an hourly rate of CHF 340 (without VAT) on the submissions before the Court, including sixteen hours of translation by another lawyer. Furthermore, the applicants submitted that Zurich-based lawyers usually charged between CHF 280 and CHF 400 per hour or more for work on matters of a similar degree of complexity and corresponding importance.

109.  The Government submitted that the translation costs had not necessarily been incurred and that, furthermore, the amounts claimed in respect of costs and expenses for the proceedings before the domestic courts and for those before the Court were manifestly excessive. They argued that the applicants had not provided any document justifying the amount claimed regarding the domestic proceedings and that no award was therefore due in this respect. In any event, the arguments submitted to courts at three levels of jurisdiction were essentially the same; thus, an amount of CHF 3,000 seemed appropriate should the Court nonetheless make an award under this heading. As regards the costs and expenses claimed in respect of the proceedings before the Court, the Government, referring to Howald Moor and Others (cited above, § 91), considered the amount of CHF 5,000 to be appropriate.

110.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 14,000 covering costs under all heads, plus any tax that may be chargeable to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the lack of access to a court;
3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessively lengthy domestic proceedings;
4. Holds

(a) that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 20,800 (twenty thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 14,000 (fourteen thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 13 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. hudoc.echr.coe.int