What happens when victims cannot get legal remedy in Swiss courts 

The asbestos factory premises in Niederurnen with stored Eternit pipes. The picture was taken in 1972, the last year Jann spent in the area. KEYSTONE

A recent ruling by the European Court of Human Rights in favour of an asbestos exposure victim reveals the limitations of the Swiss judicial system.  

When Marcel Jann was a boy he lived in a house next to an asbestos plant owned by Swiss firm Eternit. The factory was almost like a playground for Jann. He would climb the asbestos cement pipes lying around and watch the asbestos being unloaded at the Niederurnen train station located halfway between Zurich and Liechtenstein.  The use of asbestos in Switzerland was only banned in 1989.  

In 2006, Jann died from pleural cancer, a type of lung cancer, at the age of 53 allegedly due to exposure to asbestos during the 11 years he was living next to the Eternit factory. Before he died, he filed a criminal complaint against the company for grievous bodily harm. It was dismissed by the Swiss courts.  

Three years after Jann’s death, his wife and son filed a legal case for compensation against Eternit, heirs of the company’s former owner and the Swiss Federal Railways. However, in 2019, the Swiss Federal court ruled that the statute of limitations of 10 years had passed. A year later, the statute of limitations was raised to 20 years but even then, more than three decades had passed between Jann being exposed to asbestos and the legal case being filed.  

Last resort

With nowhere else to turn, Jann’s family filed a case with European Court of Human Rights (ECHR) in 2020. On February 13, the verdict External linkof the ECHR Chamber of seven judges – including one from Switzerland – was published affirming that there had been a violation of the right to a fair trial. 

“The Court noted that there was no scientifically recognised maximum latency period between exposure to asbestos and pleural cancer. Latency periods varied in the range of between 15 to 45 years (or more) after exposure,” said the press release.  

This means that the statute of limitations cannot be used as an excuse to deny Jann’s family their right of access to a court. Their claim for compensation will have to be heard.  

“In such cases, the person can request a revision of the judgement of the Federal Court and the court has to take a new decision on the basis of the judgement by the European Court on Human Rights if the conditions of Article 122 of the Federal Law on the Federal Court are met,” Walter Kälin, a law professor at the University of Bern, told SWI swissinfo.ch by email. 

The ECHR ruling is a significant victory for the Jann family, as only very rarely does the European Court rule against Swiss courts. In 2022, the ECHR dealt with 235 applications concerning Switzerland of which of which 227 were not admitted.

Russia, Ukraine and Turkey are by far the worst offenders when it comes to violations of the European Convention on Human Rights.  

Not over till it’s over 

As with most legal avenues, there is always the possibility of appeal. The Swiss government still has three months to request a referral to the Grand Chamber of the ECHR (that is made up of 17 judges) for fresh consideration of the Jann case. Such requests are exceptional and are examined by a panel of judges who decide whether or not the matter can be referred to the Grand Chamber.  

“The Federal Office of Justice will analyse the judgment and, after consulting the authorities concerned, examine whether Switzerland should refer the case to the Grand Chamber of the ECHR,” a spokesperson told Swiss public broadcaster,  SRF. 

A recent case where the Swiss government exercised this option was in November 2023 when the ECHR had ruled in favour of South African middle-distance runner Caster Semenya in July 2023. Semenya had refused to take hormone treatment to reduce her testosterone levels in order to compete.

The Court of Arbitration for Sport and the Swiss Federal Court had previously rejected her legal actions challenging the regulations.  Semenya herself has admitted that she is unlikely to compete at the highest level again but the ECHR’s Grand Chamber has the potential to set a precedent for others like her.  

Edited by Reto Gysi von Wartburg /amva