The European Court's ruling

Lugenbühl vs Switzerland

The European Court of Human Rights ruled that the case was inadmissible because it was manifestly ill-founded. However, the judgment dates from 2006, so the circumstances may have changed since then, given that Resolution 1815 was adopted in 2011 and new research have been added.

Switzerland

In 2001, Katharina Luginbühl and others appealed against the decision to build a mobile phone mast in Flawil, a municipality in the canton of St. Gallen, Switzerland. The building board rejected the appeal, and Ms Luginbühl appealed to the canton, but was not heard there either. She then took her case to the Federal Supreme Court (Switzerland is a federation, similar to the USA, with the cantons acting as states).

In 2003, the Supreme Court obtained a statement from the Federal Office for the Environment. This noted that radiation from mobile phones was likely to cause diffuse effects such as headaches, fatigue, and problems with concentration, sleep, and memory. However, it was deemed unlikely that these effects would occur below Swiss exposure limits, and the statement did not rule out the possibility of leukaemia and brain tumours. No study of mobile phone masts in particular was referred to. (The first had been presented the previous year.)

Prior to the court hearings, no lower court had granted KL's request for a public hearing with researchers on the risks of radiofrequency radiation, and she therefore did not receive fair treatment under Article 6 of the European Convention on Human Rights. Regarding this, the Supreme Court wrote that, given the uncertain scientific situation, it would not be meaningful to hold a public hearing with researchers on the risks of radiofrequency radiation. They added that the Federal Agency for the Environment, Forests and Landscape had submitted a draft research programme on non-ionising radiation and health to the Federal Agency for Education and Science. This demonstrates how the competent authorities will monitor scientific progress on the subject. Together with the extensive material submitted by KL, this made a public hearing unnecessary, given the technical nature of the case. Therefore, the complainant could not rely on Article 6 of the European Convention.

The European Court's ruling

Under Articles 1, 2, 6, 8, 13 and 14 of the European Convention on Human Rights, KL appealed the Swiss Supreme Court's judgment to the European Court of Human Rights. KL argued that radiation from mobile phone masts could harm her health even below the exposure limits and referred to the Supreme Court, which had expressly noted that she is sensitive to electrosmog, even at levels one tenth of the applicable exposure limit. The Court also considered whether the suffering of those affected could be exacerbated by the prospect of additional antennas.

Article 8

Radiofrequency radiation primarily concerns the right to protection of private and family life under Article 8. The European Court has stated that the primary purpose of Article 8 is to protect individuals against arbitrary interference by the authorities, but it can also mean that the authorities must take measures to ensure that it applies between individuals (in this case, between mobile network providers and individuals).

Research and Switzerlands protection of sensible people

The European Court also stated that there is insufficient research to determine whether mobile phone masts pose a health risk, and that a decision would therefore be speculative. Switzerland has already incorporated provisions in its legislation to protect people who are more sensitive, such as children, the sick, the elderly, and pregnant women (814.01 Bundesgesetz über den Umweltschutz, Artikel 13 Immissionsgrenzwerte).

A court cannot rule arbitrarily

Taking into account the state's ability to make arbitrary decisions, the need for comprehensive mobile phone networks and the meaning of previous case law, as well as the fact that further measures to protect the applicant's health would be unreasonable, the European Court of Human Rights concluded that the complaint under Article 8 of the Convention should be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.¹