Switzerland Guilty of Asbestos Injustices
Nearly ten years after the European Court of Human Rights (ECHR), in Strasbourg condemned Switzerland for its treatment of one asbestos victim, a ruling last month (February 2024) found that the same legal system was in violation of the European Convention on Human Rights (the Convention) in its handling of a lawsuit brought by another asbestos plaintiff. In the Jann-Zwicker and Jann v. Switzerland verdict, the Court cited the contents of Article 6 § 1 (right to a fair trial) of the Convention as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 1
In its 2014 & 2024 asbestos judgments, the ECHR rejected Swiss arguments that the lawsuits had been time-barred. In the Moor case (2014), the Swiss Federal Court had defended a limitation period of ten years in order to provide “legal certainty and legal peace.” Whilst acknowledging that the provision of “legal certainty” was a legitimate aim, the Strasbourg Court found that:
“the systematic application of the rule to persons suffering from diseases which could not be diagnosed until many years after the triggering events deprived those persons of the chance to assert their rights before the courts.
The Court considered that in cases where it was scientifically proven that a person could not know that he or she was suffering from a certain disease, that fact should be taken into account in calculating the limitation period. In view of the exceptional circumstances in the present case it considered that the application of the periods in question had restricted the applicants’ access to a court to the point of breaching Article 6 § 1 of the Convention.”2
The ECHR awarded the deceased’s widow Mrs Renate Howald Moor and children Caroline Moor and Monika Moor €12,180 (US$13,200) jointly in respect of non-pecuniary damage as well as €5,000 (US$5,400) to Mrs Moor and €4,000 (US$4,330) jointly to the daughters for costs and expenses.
Although there were differences in the two cases, the ECHR’s response to the time-barred defense advanced by Switzerland’s legal team was the same, with the 2024 unanimous decision even using some of the same language:
“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. The Court reiterated that 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 setting the limitation period. As a result of the case-law of the Federal Court, setting the beginning of the limitation period in the present case as being the end of the harmful act in question, the applicants had not had their claims for compensation examined on the merits by a court. Moreover, as the domestic case-law had placed more weight on giving legal certainty to those responsible for the damage than the victims’ rights of access to a court, there had not been a reasonable proportionality between the aims sought and the means employed.
The Swiss courts had limited the applicants’ right of access to a court in such a way that the very essence of the right had been impaired. The State had thus gone outside its discretion (“margin of appreciation”) in the case, in violation of Article 6 § 1 of the Convention.”
 The European Court of Human Rights, Strasbourg, France. |
The sum of €34,000 (US$37,311) was awarded for moral injury, costs and expenses to the deceased’s widow and son: Regula Jann-Zwicker and Gregor Jann.
Commenting on this month’s ECHR judgment, Martin Hablützel – the Jann family’s lawyer and the legal representative of the Association for Asbestos Victims and Families – said:
“The ECHR's decision means that asbestos victims can bring their claims before the Swiss courts without the defendants being able to invoke the absolute limitation period of 20 years. The general rule for all Council of Europe countries is that long-term injuries can no longer be time-barred as long as the victims were not aware of the damage to their health. Absolute limitation periods should therefore no longer apply to health damage.
Switzerland has the opportunity to refer the case to the Grand Chamber of the ECHR within 3 months, otherwise the verdict will become final. In that case, the Jann family must ask the Federal Supreme Court to review its negative decision from 2019. According to the ECHR judgment, the Federal Supreme Court is obliged to rule that the statute of limitations has not expired in the Jann case. It must therefore overturn the decisions of the lower courts. The case will then revert to the first instance court in the canton of Glarus.” 3
Should the case revert to the Glarus Cantonal Court, a trial will hear evidence about whether the defendants breached their duty of care by failing to protect the health of employees and people who lived near the asbestos factory in Niederurnen. If found guilty, the accused – the asbestos company Eternit (Schweiz/Switzerland) AG, Thomas and Stephan Schmidheiny (heirs of the former owner Max Schmidheiny) and the Swiss Federal Railways – will be ordered to pay damages and compensation to Mrs. Jann and her son.
Asked for his take on the significance of the ECHR decision in the Jann case, Bernhard Herold, Senior Advisor for Decent Work and OSH at Solidar Suisse (Swiss Solidarity), opined:
“The ECHR ruling poses a bigger problem for the Swiss justice system with regard to the applicable statute of limitations. Until 2020, victims of asbestos related diseases (ARDs) had to make their claims for compensation at the latest 10 years after their exposure to asbestos, which was obviously much too short for most ARDs, in particular mesothelioma. In 2020, mainly because of the ARD problem, the Swiss Parliament extended the period to 20 years even though it knew that for ARDs this was still insufficient, given that the latency period can be up to 40 years or even more for these diseases.
The ECHR ruling means that either the Swiss Parliament once again takes up the issue and further extends the statute of limitations or the Swiss courts will have to decide in future cases whether they give greater weight to the will of the Swiss Parliament or the Human Rights Convention. Normally the later should prevail. The ECHR ruling is important, because the issue of long latency periods also exists with other occupational diseases and/or may come up in the future, given all the new chemicals entering the market every year.”4
Concluding Thoughts
For decades, the Swiss legal system consistently failed asbestos victims. Defendants in the Jann case included Eternit (Schweiz/Switzerland) AG, Thomas Schmidheiny and his brother Stephan, all of whom were part of the “best known business dynasty of Switzerland”; in fact, “the greatest industrialist in Switzerland,” Max Schmidheiny, was Thomas and Stephan’s father.5 Companies operating within the Schmidheiny family empire had powerful friends and allies in and out of government. There is no doubt that lobbying by the Eternit Asbestos Group was influential in creating a legal and political climate in which the company’s fortunes could flourish even at the expense of employees and other Swiss citizens. The February 2024 judgment of the European Court of Human Rights, which declared the operations of Switzerland’s legal system to be inequitable, could help bring this injustice to an end.
March 4, 2024
1 European Convention on Human Right.
https://www.echr.coe.int/documents/d/echr/convention_ENG
2 ECHR Press Release. Persons suffering from asbestos-related diseases were unable to assert their rights owing to the rules on limitation periods. March 11, 2014.
https://hudoc.echr.coe.int/fre-press?i=003-4695490-5697809
ECHR Judgment. AFFAIRE HOWALD MOOR ET AUTRES c. SUISSE [Case of Howald Moor and Others v. Switzerland]. March 11, 2014.
https://hudoc.echr.coe.int/fre?i=001-141567
ECHR. Judgment concerning Switzerland. February 13, 2024.
https://www.echr.coe.int/w/judgment-concerning-switzerland-1
3 Email from to Martin Hablützel. February 26, 2024.
4 Email from Bernard Herold. February 23, 2024.
5 Knoepfli, A. The Schmidheiny Family Imperium. September 2011.
http://www.ibasecretariat.org/eternit-great-asbestos-trial-chap-2.pdf
