Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application Nos. 21825/93 and 23414/94

Kenneth McGinley and E. E.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 26 November 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-12). . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-7). . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 8-12) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 13-75) . . . . . . . . . . . . . . . . . . . . . . 4

A. Relevant Background

(paras. 14-36) . . . . . . . . . . . . . . . . . . . 4

B. The particular circumstances of the first applicant's case

(paras. 37-48). . . . . . . . . . . . . . . . . . . . 9

C. The particular circumstances of the second applicant's case

(paras. 49-61). . . . . . . . . . . . . . . . . . . .11

D. Relevant domestic law and practice

(paras. 62-75). . . . . . . . . . . . . . . . . . . .14

III. OPINION OF THE COMMISSION

(paras. 76-139). . . . . . . . . . . . . . . . . . . . . .18

A. Complaints declared admissible

(para. 76). . . . . . . . . . . . . . . . . . . . . .18

B. Points at issue

(para. 77). . . . . . . . . . . . . . . . . . . . . .18

C. The evaluation of the evidence

(paras. 78-102) . . . . . . . . . . . . . . . . . . .18

D. As regards Article 6 para. 1 of the Convention

(paras. 103-119). . . . . . . . . . . . . . . . . . .24

CONCLUSION

(para. 120) . . . . . . . . . . . . . . . . . . . . .28

TABLE OF CONTENTS

Page

E. As regards Article 8 of the Convention

(paras. 121-131). . . . . . . . . . . . . . . . . . .28

CONCLUSION

(para. 132) . . . . . . . . . . . . . . . . . . . . .31

F. As regards Article 13 of the Convention

(paras. 133-135). . . . . . . . . . . . . . . . . . .31

CONCLUSION

(para. 136) . . . . . . . . . . . . . . . . . . . . .32

G. Recapitulation

(paras. 137-139). . . . . . . . . . . . . . . . . . .32

PARTLY DISSENTING OPINION OF MM. S. TRECHSEL, F. MARTINEZ

AND N. BRATZA AS REGARDS ARTICLE 8 OF THE CONVENTION. . . . . .33

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .34

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European

Commission of Human Rights and of the procedure before the Commission.

A. The application

2. The applicants are British citizens, born in 1938 and 1939 and

resident in Paisley and Glasgow, respectively. They were represented

before the Commission by Mr. Ian Anderson, an advocate and attorney at

law practising both in Scotland and the United States of America.

3. The application is directed against the United Kingdom. The

respondent Government were represented by Ms. Susan Dickson, Agent,

Foreign and Commonwealth Office.

4. The case concerns the applicants' allegations of non-disclosure of

records concerning their participation in the United Kingdom's nuclear

test programme at Christmas Island in 1958 and they invoke Articles 6,

8 and 13 of the Convention.

B. The proceedings

5. The applications were introduced on 20 April 1993 and

31 December 1993 and registered on 12 May 1993 and 7 February 1994,

respectively.

On 5 April 1994 the Commission decided, pursuant to Rule 48 para. 2 (b)

of its Rules of Procedure, to give notice of the applications to the

respondent Government and to invite the parties to submit written

observations on the admissibility and merits of the applicants'

complaints under Articles 6, 8 and 13 of the Convention.

6. The Government's observations were submitted by letter dated

7 September 1994 after two extensions of the time-limit fixed for this

purpose. The applicants replied on 19 January 1995 after three extensions

of the time-limit. Further observations of the Government were submitted

on 10 and 11 May 1995. On 15 May 1995 the Commission decided to join the

applications, request further observations from the parties and adjourn

the application in the meantime. The Government submitted the further

observations on 20 July 1995 after one extension of the time-limit and

the applicants submitted their observations on 17 July and 29 August 1995

also after one extension of the time-limit. On 7 July 1995 the Commission

granted the applicants legal aid. On 28 November 1995 the Commission

declared the applicants' complaints under Articles 6, 8 and 13 of the

Convention admissible, declared inadmissible the remainder of the

application and requested further observations of the parties. The text

of the admissibility decision was sent to the parties on 30 November

1995. The observations of the Government were received on 15 February,

12 June, 27 August and 24 October 1996. Observations of the applicants

were received on 29 January, 12 February, 1 April, 10 April, 3 May, 17

June, 8 and 12 August and 24 September 1996.

7. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be effected.

C. The present Report

8. The present Report has been drawn up by the Commission in pursuance

of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

9. The text of this Report was adopted on 26 November 1996 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

10. The purpose of the Report, pursuant to Article 31 of the Convention,

is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

11. The Commission's decision on the admissibility of the application

is annexed hereto.

12. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

13. The Commission has set out in this part of the report the facts that

are not disputed by the parties and has set out its evaluation of the

evidence on the disputed facts at part III below.

A. Relevant background

1. Atmospheric Nuclear testing programmes

14. Between 1952 and 1967 the United Kingdom Government carried out a

number of atmospheric tests of nuclear weapons in the Pacific Ocean and

Australia.

15. Over 20,000 servicemen participated in these tests. The tests

included seven detonations at Maralinga, south Australia in 1956 and 1957

and six detonations at Christmas Island on 8 November 1957, 28 April

1958, 22 August 1958, 2 September 1958, 11 September 1958 and

23 September 1958. The weapons detonated in 1958 at Christmas Island were

more powerful than those detonated at Maralinga and many times more

powerful than those detonated at Hiroshima and Nagasaki. All devices in

the megaton range (Operations Grapple X, Grapple Y and two in the Grapple

Z series) were detonated over the sea off the south-eastern peninsula of

Christmas Island and the two Grapple Z devices in the kiloton range were

detonated over the south-eastern peninsula. Many of the servicemen who

participated in the tests were lined-up in the open air in light clothing

at the moment of the detonations, ordered to look away from the direction

of the initial flash and then ordered to turn around in the direction of

the blast.

16. The United States also ran a test programme in the Pacific which

included the detonation of a hydrogen bomb at Bikini Island in 1954.

2. Documents submitted in support of the applicants' submission as to

one of the reasons for the United Kingdom's nuclear test programme

17. A document headed "Atomic Weapon Trials", marked "Top Secret" and

dated 20 May 1953, of the Defence Research Policy Sub-Committee of the

Chiefs of Staff Committee states:

"... Many of these tests are of the highest importance to

Departments... The army must discover the detailed effects of

various types of explosion on equipment, stores and men with and

without various types of protection...".

18. On 12 March 1984 a debate took place in the House of Commons on the

United Kingdom's nuclear test programme. The content of the above

document was raised and the Minister for Defence Procurement responded

by stating that what happened was that the blast and thermal and

radiation consequences of a nuclear explosion on man were determined by

taking measurements of the flux level of various protected and

unprotected positions using instruments. The consequences of those flux

levels for man would then be calculated. The Minister also confirmed

that, during the tests in Maralinga and in order to allow servicemen to

experience the effects of nuclear explosions at ranges closer than

previously allowed, 200 United Kingdom servicemen were stationed at about

eight kilometres from the epicentres of the detonations.

19. A memorandum headed "Atomic Weapons Trials and Training" and dated

29 November 1955 noted that during the 1957 trials the Royal Air Force

"will gain invaluable experience in handling the weapons and

demonstrating at first hand the effects of nuclear explosions on

personnel and equipment". On 22 December 1955 the Director of the Atomic

Weapons Research Establishment wrote to the Ministry of Defence in

relation to the supply to a similar Australian body of filter pieces

which measured the fallout from the tests in Australia and he

recommended, if Australia asked to examine the filters, that pieces of

the filters be supplied but "that we wait a few days so that some of the

key isotopes have decayed a good deal".

20. A War Office memorandum dated 19 November 1957 and headed "UK

personnel for duty at Maralinga" began by stating that "All personnel

selected for duty at Maralinga may be exposed to radiation in the course

of their military duties". The memorandum continued by referring to

initial medical examinations including detailed blood count analysis to

determine suitability for duty prior to duty in Maralinga together with

blood analysis on return from duty. It concluded that "A steady and

progressive fall in successive blood counts or a fall below the warning

level indicates that the individual must be removed from all contact with

radioactivity until he has been found fit to return to duties involving

exposure to radioactivity".

21. On 15 July 1958, during a meeting of the Atomic Weapons Research

Establishment to discuss the issue of blood monitoring for leukaemia in

4500 servicemen about to depart for Christmas Island, it was agreed that

only civilian personnel would be tested prior to departure since a

serviceman found to be healthy before the test who contracted leukaemia

afterwards "may have a case for arguing that the test was a cause".

22. A Ministry of Defence file, dealing with prospective blast effects

of the Grapple Y detonation (at Christmas Island), gave details of the

positions of certain categories of servicemen, blast effects, thermal

radiation, radiation effects and radiation fallout and stated that

personnel in the main camp should be paraded as during a previous

detonation in late 1957 with the addition of protective clothing bearing

in mind that "thermal radiation may be expected from all angles due to

scatter". It was emphasised that in the event of the expected yield being

obtained or increased there "will almost certainly be, in addition to

considerable material damage, casualties to individuals and this should

be taken into account."

3. Medical Research Council

23. A report headed "Genetic effects of radiation with reference to man"

of the Medical Research Council ("MRC") dated 6 February 1947 stated that

"all quantitative experiments show that even the smallest doses of

radiation produce a genetic effect, there being no threshold dose below

which no genetic effect is induced".

24. In March 1955 the then Prime Minister (Sir Anthony Eden) requested

the MRC to appoint an independent committee to report to Parliament on

the medical and genetic effects of radiation. In June 1956 the MRC

committee so reported and commented that exposure to ionising radiation,

however small, could increase the frequency risk of gene mutation in the

reproductive cells, noting that from the film badges of employees of the

Atomic Energy Authority it was possible to calculate accurately "the

doses received by such employees in relation to their expectation of

parenthood" and commenting that the changes in the sex ratio in the

children of those exposed to radiation might be due to genetic damage.

Subsequent to a progress report of the MRC committee being shown to the

Prime Minister, a letter was sent from Downing Street dated 16 November

1955 reporting the Prime Minister as having commented on such

consequences as being "a pity but we cannot help it".

25. A telex dated July 1956 discussed the brief of the Director of the

Atomic Weapons Research Establishment on a recent MRC committee (see

below) report pending his arrival on Christmas Island and stated as

follows:

"We do not want to release any statement on genetic effects or on

radioactivity or strontium pending the arrival of .

If you have to, a safer interpretation of the MRC report in the last

sentence of paragraph 4 would be, `has not shown an increase' rather

than `shows an increase'." (emphasis added)

26. The MRC committee submitted an updated report in 1960 emphasising

that the research conducted gave no grounds for believing that there was

a threshold below which no increase in mutation occurs.

4. The Royal Commission into British Nuclear Testing in Australia

27. The Australian Royal Commission was appointed in July 1984 by the

Queen to enquire into the conduct of the Australian tests. That

Commission was furnished with documentation including statements, plans

and reports covering the planning, execution and results of some of the

test activity in Australia, which documents were also transferred at the

same time (mid-1980's) to the United Kingdom Public Records Office under

reference number DEFE16.

28. The Commission's report was published in 1985. It concluded that in

many respects the information furnished by the United Kingdom Government

to the Australian Government in relation to the test programme was

inadequate. Various specific tests and projects were criticised as being

carried out in an inappropriate and negligent manner causing danger to

both civilian populations and military personnel. For example, the Royal

Commission found that the safety precautions against radiation exposure

employed at Maralinga, south Australia, demonstrated, "ignorance,

incompetence and cynicism" by the United Kingdom for the safety of

persons in the vicinity of those tests. It was also concluded that there

had been some serious departures from the contemporary radiation

protection policies and standards during the test programme. It was

accepted that exposure to radiation at certain dose levels is associated

with increased risk of cancer and genetic effects. While increased

frequency of genetic effect had not been demonstrated in any irradiated

human population (and noting that such a study would not be practicable),

it was accepted that such effects do occur. By reason of the major

detonations and the deposition of fallout across Australia, it was

thought probable that cancers, which would not otherwise have occurred,

had been caused in the Australian population.

29. The Commission, accordingly, recommended, inter alia, that the

benefits of certain compensation legislation be extended to include not

only military personnel but also civilians who were at the test sites at

the relevant time. By agreement dated 10 December 1993 the United Kingdom

agreed to pay £20 million to the Government of Australia in settlement

of all claims made by any persons (excluding United Kingdom test

participants) for injuries connected with the test programme.

5. Marshall Islands Nuclear Claims Tribunal

30. This tribunal was set up in 1987 to consider claims from residents

of the Marshall Islands about the United States trial detonations at

Bikini Island. By 31 December 1993 the tribunal had admitted 676 claims

in respect of cancer related illnesses suffered by the inhabitants of the

Marshal Islands. The closest of the Marshal Islands was 120 miles (192

kilometres) from Bikini (Rongelap), four of the relevant islands were

over 300 miles (580 kilometres) from Bikini and two were 500 miles or

over (800 kilometres) from Bikini. The total gross compensation awarded

by the tribunal as at 31 December 1993 was $25,225,500.00.

6. Reports of the National Radiological Protection Board ("NRPB"), of

personnel from the Atomic Weapons Establishment ("AWE") and of the

British Nuclear Test Veterans Association ("BNTVA").

(a) The 1988 and 1993 NRPB reports

31. Due to increasing concern expressed in the media about early deaths

of test veterans, the Ministry of Defence commissioned the NRPB (in

conjunction with the Imperial Cancer Research Fund) to carry out a study

into mortality and cancer rates amongst the test veterans. The NRPB

compared the mortality and cancer rates of a body of test veterans

(21,358 persons) with a control group (army personnel who passed similar

medical tests on entry into service but who did not participate in the

testing).

32. During the House of Commons debate on 12 March 1984 on the United

Kingdom nuclear test programme, a Member of Parliament read a letter

received that day from the Joint Committee on the Medical Effects of

Nuclear Weapons which confirmed that the National Radiological Protection

Board's expertise was in monitoring radiation exposure not in carrying

out epidemiological health surveys and, furthermore, expressing surprise

that the Government entrusted the investigation into its own liability

to a Government body when other bodies, whose impartiality could not be

reasonably questioned, were available to do the work. The Minister for

Defence Procurement responded by referring to a previous discussion in

the House of Commons about the independence and suitability of the NRPB

and indicating that he had hoped that the relevant Members of Parliament

who had raised the questions would be prepared to accept a body with the

experience of the NRPB as an acceptable assessment source.

33. The NRPB report concluded that participation in the nuclear test

programme did not have a detectable effect on the test veterans' overall

expectation of life nor on their total risk of developing cancer.

However, the test veterans demonstrated a higher rate of leukaemia and

multiple myeloma than the control group. As a result, the Department of

Social security ("the DSS") subsequently awarded war pensions to those

presenting these two conditions.

34. In order to clarify the situation, a follow up report was completed

extending the period of review over seven more years so that almost

double the number of deaths were available for analysis. The NRPB again

concluded that there had been no detectable difference in the veterans'

expectation of life nor as regards their risk of developing cancer or

other fatal diseases. The suggestion from the previous report that

participants may have experienced small hazards of leukaemia and multiple

myeloma, was found not to be supported by the additional data used for

the second report and the excesses observed in the first report were

reported as being a chance finding, although the possibility that test

participation may have caused an additional risk could not be completely

ruled out.

(b) Report by personnel of the AWE

35. Personnel with the AWE produced a report which described the

environmental monitoring programme at Christmas Island during the test

detonations and the results obtained. The report, which is stated to not

necessarily represent the official views of the AWE, is marked

"unclassified" and is dated October 1993. It concluded that there was no

detectable increase in radioactivity on land, in the sea or in the air

pursuant to the Christmas Island testing. It also concluded that there

was therefore no danger to personnel from external radiation nor from

inhalation and ingestion of radioactivity.

(c) The BNTVA report

36. The BNTVA is a voluntary group founded in 1983 by the first

applicant to campaign for recognition and compensation for those who

participated in the United Kingdom's nuclear test programme and who as

a consequence were allegedly exposed to radiation. Its members number

approximately 3000 and include British ex-servicemen, who claim that they

were deliberately exposed to ionising radiation, and their children who

claim to be genetically impaired. Further to a request by an adviser of

the Defence Select Committee, a statistical report entitled "Radiation

Exposure and Subsequent Health History of Veterans and their Children"

was published by the BNTVA in or about February 1992. It was based on a

survey of the members of the BNTVA and it concluded that 1 in 5 of its

members suffered from cancer and that 1 in 4 veterans had children who

suffered from defects attributable to genetic origin. The BNTVA engaged

a researcher in order to obtain available contemporaneous records in

relation to the nuclear test programme in Australia and the Pacific.

B. The particular circumstances of the first applicant's case

37. On 23 October 1956 the applicant's medical examination for entrance

into the army took place and the clinical examination was normal. The

applicant was enlisted fit for full combat service in any part of the

world. In December 1957 the applicant was posted to Christmas Island and

was present on Christmas Island for the test detonations of 28 April

1958, 22 August 1958, 2 September 1958, 11 September 1958 and 23

September 1958. The applicant was lined-up in the open air in light

clothing at the moment of certain detonations, ordered to look away from

the direction of the initial flash and then ordered to turn around in the

direction of the blast.

38. The only entry during the detonation period in the applicant's

service medical records refers to medical treatment on Christmas Island

between 15 September and 23 September 1958 for a throat infection. Those

records continue on 28 October 1958 with treatment for tonsillitis and

between 14 and 21 November 1958 with the provision of a splint for

"facial palsy". The applicant was subsequently hospitalised at the

military hospital in Honolulu for influenza. This latter treatment is

also reflected in his service medical records.

39. On 10 November 1959 the applicant was given a medical discharge from

service. His statement on discharge records that the applicant suffered

a broken ankle on Christmas Island in May 1958 and that he had been

treated for eight weeks for this as an out-patient of a service hospital

on Christmas Island. His service medical records do not reflect this

treatment. In April 1960 the applicant was awarded a 20% war pension in

relation to a duodenal ulcer attributable to army service. In 1962 he had

to undergo an operation to remove part of his stomach. In 1965 he broke

out in boils all over his body and began to suffer constant pain. In 1967

he was diagnosed as being sterile and in 1973 he began to experience

severe kidney problems. Because of his health problems, the applicant was

unable to retain employment for prolonged periods. His disability was re-

assessed at 30 % disability in respect of his ulcer in June 1980. On 8

June 1982 his disability was reduced again to 20% but restored to 30% on

13 December 1982 following the applicant's appeal to the Pensions Appeals

Tribunal ("the PAT").

40. Following a series of articles in the press in 1982 about the

potential effects of the Christmas Island explosions on those exposed to

them, the applicant came to attribute his history of illness to his

service on the island and sought an increase in his pension to reflect

this. On 1 April 1984 the applicant made a claim for an increase in his

pension in relation to his health problems which he alleged resulted from

exposure to radiation on Christmas Island. On 16 May 1984 the DSS made

a departmental inquiry to the Ministry of Defence. The DSS noted that the

applicant was claiming a war pension for radiation related illnesses and

that he was stationed in Christmas Island. The DSS asked for confirmation

that the applicant was directly involved in the tests and that the

applicant was in the vicinity of the tests either before or after the

tests and further asked what the applicant's duties were, whether the

area in which he served was subject to any radiation and, if so, to how

much radiation. The DSS also queried whether the applicant was wearing

a film badge, what the readings from that badge were and what

instructions about safety precautions and the wearing of film badges were

recorded. It was finally noted that in the event of an appeal to the PAT

the information would be made available to the claimant.

41. On 11 June 1984 the Ministry of Defence confirmed that, from the

"information available and reviewed up to now", the applicant was on the

island during the detonations. His duties were outlined and it was stated

that he was no closer than 40 kilometres from the epicentres of the

detonations, that the areas in which he served were not subject to

fallout and that the initial ionising radiations from the detonations in

the area in which he served were not "sensibly different from ZERO".

Accordingly, the applicant was not exposed to such initial radiations at

any level "sensibly differing from ZERO". It was also confirmed that no

film badges were issued to the applicant, that there were general

radiological safety regulations and specific unit orders issued including

instructions on hazards, safety precautions and on the issue and wearing

of film badges where necessary. The response repeated that the radiation

exposure was zero and the radiation effective dose from the ever present

background radiation was no more and probably less than he would have

received had he remained in the United Kingdom. It concluded that

therefore his medical condition would not have been caused by ionising

radiations from the test programme.

42. On 30 November 1984 the applicant's claim, based on the conditions

of reduced fertility, osteoarthritis, skin problems and renal colic

arising out of radiation, was refused by the Secretary of State for

Social Security pursuant to the deliberations of the war pensions branch

of the DSS, as it was found that these conditions were not attributable

to his military service. The applicant's parallel application, to re-

assess his pension based on the duodenal ulcer, was also refused. On 21

January 1985 the applicant appealed to the PAT against both decisions of

the DSS, claiming that his service medical records had been doctored.

43. On 11 February 1985 the DSS again initiated a departmental enquiry

to obtain all available medical records of the applicant between December

1957 and December 1958 or to confirm, using if necessary Admission and

Discharge Books, the applicant's hospital treatment on Christmas Island

during that period relating to "Disablement rash on body and face". Two

days later, on 13 February 1985, the Ministry of Defence responded by

confirming that "No A & D books held under

particulars quoted. N/T medical records."

44. The DSS obtained evidence including hospital case notes, together

with reports from the applicant's own doctor, a DSS psychiatrist, a

rheumatologist, a dermatologist and a urologist. The psychiatrist stated

that he "would not consider that Mr. McGinley is suffering from a

psychiatric condition". The rheumatologist concluded that the condition

complained of related to normal wear and tear and added that he could

"find nothing to connect it with radiation exposure".

45. On 3 March 1986 the dermatologist gave a detailed report of the

applicant's skin problems, which had included the development of 12 to

14 painful and inflamed cutaneous crusts one of which required surgical

excision and two of which were lanced by a medical practitioner. He noted

scattered open comedones and multiple ice pick scars over the applicant's

face and neck. The doctor indicated that he had no professional

competence to determine whether this condition had been induced by

radiation exposure and recommended that an expert opinion be sought from

someone familiar with the effects of ionising radiation on the skin. The

DSS declined to follow this recommendation for two reasons (noted in a

report by the Chief Medical Officer dated 19 January 1987). The evidence

from the military medical records showed no record of skin problems

during the applicant's service and, on the basis of the report from the

Ministry of Defence, the Secretary of State did not accept that the

applicant was exposed to ionising radiation and therefore the point was

irrelevant.

46. In his report of 24 June 1987 the urologist found that he could come

to no conclusion regarding the effect of ionising radiation on the

applicant's infertility and renal problems. The DSS had previously stated

to the urologist that "We have been assured by the AWE that

applicant> was too far away from the test sites to have been contaminated

with any kind of ionising radiation". The applicant's own doctor reported

on the applicant's illnesses and conditions and concluded that, though

individually they might not have been significant, taken as a whole they

could be consistent with radiation exposure.

47. Based on this information the DSS prepared a Statement of Case and

sent an edited copy to the applicant (in accordance with Rule 22 of the

Pension Appeals Tribunal Rules (Scotland) 1981) omitting information on

the basis that it was "undesirable in the interests of the applicant to

disclose to him". The applicant's representative received an unedited

version. On 25 February 1988 the PAT disallowed the appeal.

48. On 9 July 1991 the applicant again requested a claim form in

relation to exposure to nuclear radiation resulting in acne vulgaris,

sterility and severe arthritis in his leg, arms and spine. The DSS again

sought a report from the Ministry of Defence regarding the applicant's

service related ionising radiation exposure. The reply confirmed zero

exposure. The applicant did not pursue this claim after he was reminded

by the DSS of the rejection of his previous claim in 1988. In 1992 the

applicant applied for and received an added assessment of 1-5% for

hearing loss.

C. The particular circumstances of the second applicant's case

49. In October 1956 the applicant enlisted in the Royal Navy at age 17.

He was passed as fit with no medical problems and, in particular, his

respiratory system was recorded as normal. He was enrolled fit for full

combat duty in any part of the world. In April 1958 the applicant was

serving on board HMS Ulysses which was positioned off Christmas Island

at the time of the detonation on 28 April 1958. He was lined-up in the

open air in light clothing at the moment of the detonations, ordered to

look away from the direction of the initial flash and then ordered to

turn around in the direction of the blast.

50. The applicant had a number of chest x-rays (mass miniature

radiography on 70 mm film) on 8 March 1958, 30 April 1959, 30 May 1960

and 1 February 1961. He had follow-up full plate x-rays on

2 February 1961 in Portsmouth, England. The applicant's statement, made

on 2 February 1961 in connection with his discharge from the navy, only

referred to a fractured clavicle. On 8 February 1961 the applicant was

discharged from the navy on compassionate grounds by purchase. The

applicant continued to suffer from exhaustion and breathlessness. An x-

ray taken in June 1965 indicated extensive modular infiltration of both

lungs, which condition was diagnosed as sarcoidosis.

51. On 10 July 1970 the applicant applied for a disablement pension

alleging that his condition was attributable to his exposure to the

nuclear test off Christmas Island. On 14 July 1970 the DSS requested "all

available medical records", including "extracts from the admission and

discharge books if necessary" from the Medical Records Section of the

naval archives registry. The reply, which was received on the same day,

read "No trace medical records". On 28 July 1970 the DSS again raised a

departmental enquiry with the Ministry of Defence stating that the

applicant was claiming a pension for a chest condition which he

attributed to his exposure to a detonation at Christmas Island and

requesting the Ministry to confirm the applicant's service at

Christmas Island and whether he was in close proximity to any explosions.

The Ministry of Defence confirmed that the applicant was 70 miles

(112 kilometres) from the detonation and supplied a trace of the

applicant's service record.

52. On 12 August 1970 the DSS asked the Ministry of Defence for the

applicant's x-ray of 2 February 1961. The response, dated

18 September 1970, noted that a thorough search of the large film

records for 1961 had been made and that no trace of a large film for the

applicant could be found. On 5 October 1970 the DSS made another enquiry

of the Ministry of Defence noting that it appeared, from the case notes

regarding the applicant's post-service treatment previously submitted to

the DSS, that the applicant had been admitted to hospital for two weeks

in 1958 and that the applicant claimed that his lung ailment had been

caused by his exposure to radiation during the test programme in 1958.

The DSS, accordingly, requested confirmation as to whether any type of

atomic device exploded whilst the applicant's ship was stationed off

Christmas Island and, if so, requesting confirmation of the distance of

the ship from the epicentre of the blast. Confirmation was also requested

as to whether the ship was stationed sufficiently close for any crew

members to have accidentally sustained radiation burns, whether the

applicant was likely to have cause to be in the open (given the type of

ship on which he served) and thereby subjected to blast and, if so, what

protective clothing was issued. The DSS also requested the medical

records in relation to a particular entry in the service record

previously sent to the DSS relating to, inter alia, the period between

24 May 1958 and 9 June 1958. The x-rays taken on 70 mm film of the

applicant during service were also requested.

53. The response, dated 16 October and 17 November 1970, noted that no

bed tickets were held for the applicant, that there was "no entry in the

Civil Register nor is there any trace in the Medical Officer's Journal"

and that "all available medical documents" had been sent to the DSS on

20 July 1970. It was also noted that the applicant served on the relevant

ship from 30 April 1957 until 2 November 1958, that the records of the

detonation on 28 April 1958 were held by the War Historical Branch and

that an examination of these and the logbook for the applicant's ship

showed that the ship was approximately 70 miles from the explosion in

April 1958. It was further noted that the Naval Plan for the ship

required "precautions to be taken by ships in target areas". All exposed

personnel were to be completely covered, anti-flash hats, gloves and

goggles were to be worn and long trousers were to be tucked into socks.

54. On 12 January 1971 the DSS medical board found against the

applicant. On 4 March 1971, further to representations received on the

applicant's behalf, an enquiry was made by the DSS of the Ministry of

Defence for any "service documents which the Ministry of Defence may have

been holding including hospital records and x-rays report and films. The

DSS indicated that the reason they were asking again was because of the

applicant's recent representations and that the DSS wanted to confirm

that no further in-service documents are available. The response from the

Ministry of Defence was dated 12 March 1971 and was to the effect that

the case had been thoroughly dealt with and that "to date" further

service documents could not be provided.

55. On 5 April 1971 the applicant lodged an entitlement appeal to the

Pensions Tribunal. A medical report, dated 2 August 1971 and completed

by a senior chest physician retained by the DSS, concluded that it was

virtually certain that the correct diagnosis was sarcoidosis and that the

disease had no relationship of proximity to an atomic explosion in April

1958. However, that physician suggested that the applicant might be

suffering from chronic berylliosis caused by exposure to beryllium, an

alloy used in the nuclear tests. His report indicated that the clinical

effects of berylliosis and sarcoidosis were similar and that it was

important to ascertain the precise nature of the applicant's medical

treatment from 24 May 1958 to 9 June 1958 in order to exclude this

possibility. (The Ministry of Defence subsequently confirmed that the

applicant was on loan to another ship during that time and that no

sickness was documented during that period.)

56. Further to another DSS enquiry dated 26 August 1971 to the Ministry

of Defence in relation to beryllium exposure, the Ministry of Defence

expressed the opinion that the applicant's exposure to beryllium

compounds was unlikely in the course of his work as a stoker. It was also

noted that the log of the relevant ship had been "scrutinised in relation

to the periods at Christmas Island in 1958 and there is certainly no

record to substantiate the story of atomic bomb blast. Certainly had he

been ashore there would have been no significant exposure".

57. On 7 December 1971 an edited Statement of Case was sent to the

applicant, which statement excluded information on the basis of its

"potential to distress or harm the applicant". An unedited version was

sent to the applicant's representative. The applicant disputed the

Statement of Case on the basis that it lacked full medical records in

relation to his illness after the April 1958 detonation and his x-ray

films. He also contended that he was 15 to 20 miles (24-32 kilometres)

from the detonation and not 70 miles (112 kilometres) and he disputed

that the log of his ship contained no evidence that the crew was exposed

to an atomic blast.

58. Following a further enquiry by the DSS in relation to medical

reports and x-rays in light of the applicant's mentioning of "missing

records", the Archives section of Medical Records confirmed, in December

1971, that no further medical records had been traced. Two further

enquiries to the Ministry of Defence were made by the DSS for a special

trace for case notes, x-rays or any other details relating to the

applicant's hospitalisation in April 1958 and for confirmation of the

distance of the applicant's ship from the detonation of April 1958. The

responses dated 12 January and 7 March 1972 noted, inter alia, that no

further medical records could be traced, that no x-ray films were held

by the Ministry of Defence before 1960 and that a recalculation of the

position of the applicant's ship showed that he was 60 miles (96

kilometres) from the blast.

59. On 29 August 1972 the PAT rejected the applicant's appeal.

60. On 21 October 1982 the applicant submitted another claim for a war

pension due to radiation related sarcoidosis of the lung. The DSS

responded to the applicant by reminding him of the decision of the PAT

taken in 1972 and informing him that it was legally binding unless set

aside by the Court of Session in Scotland on a point of law.

61. On 11 July 1991 the DSS received another war pension claim (lodged

by the BNTVA on the applicant's behalf) which was similar to that in

respect of which the PAT issued its decision in 1972 and to the further

war pension claim made in 1982. The applicant was again reminded of the

PAT's decision of 1972 and the applicant responded, by letter dated 30

October 1991, stating that he was not happy with that decision. The DSS

replied by referring the applicant to the fact that the PAT had sight of

his service documents in considering his case. On 25 April 1992 the

applicant made a further claim for a war pension due to deafness. The

claim was rejected by the Secretary of State and the applicant did not

appeal the decision to the PAT.

D. Relevant domestic law and practice

1. Civil action for compensation by servicemen against the Crown

62. The right to compensation under common law is enforceable through

the civil courts once the plaintiff proves that, given the state of

knowledge at the relevant time, the illness or injury was reasonably

foreseeable and, on the balance of probability, was in fact caused by the

action or inaction of the person against whom he is claiming.

63. However, armed forces personnel, whose cause of action arose on duty

before 1987, are barred from taking civil proceedings for compensation

against the Crown by section 10 of the Crown Proceedings Act 1947. It was

specifically provided that the repeal of section 10 by legislation in

1987 was not applicable to those claiming in respect of pre-1987

occurrences. It is disputed between the parties as to whether the Crown's

immunity from suit survived the judgment in the case of Pearce v. The

Secretary of State for Defence and Ministry of Defence [1988] 2 WLR 145.

However, it is not disputed that to date no one (including Mr. Pearce)

has been able to successfully demonstrate in a civil action for

compensation that an illness was, on the balance of probability, caused

by radiation from the Christmas Island nuclear test programme.

2. War Pensions

64. Servicemen can, in relation to pre-1987 occurrences excluded under

section 10 of the Crown Proceedings Act 1947, apply for a service

disability pension pursuant to the Naval Military and Air Forces Etc.

(Disablement and Death) Service Pensions Order 1983 in relation to, inter

alia, illnesses and injuries attributable to service.

65. Claims for such a pension are made to the Secretary of State for

Social Security and he decides whether a claimant is entitled to benefit

and the way the benefit should be paid depending on the claimant's

assessed disability. An award of a pension is made where the claimant

raises reliable evidence to demonstrate a reasonable doubt in his favour

that the injury or disease is attributable to service after 2 September

1939.

66. On receipt of an application for a pension, the DSS, inter alia,

obtain the claimant's service records (including service medical records)

from the Ministry of Defence and establish certain basic factual matters.

The DSS doctor may, in order to assist him in forming an opinion as to

whether the claimant is suffering from the disability and whether the

disability is attributable to service, obtain further medical evidence

and reports including civilian medical records. Once this assessment is

completed the Secretary of State for Social Security will give the final

decision.

67. A claimant who is refused a war pension by the Secretary of State

for Social Security can appeal to the PAT and the full entitlement appeal

is governed by the Pensions Appeal Tribunal Acts 1943-1949. The PAT

consists of a legally qualified chairperson, a medical member and

normally a member of the armed services. In order to assist the PAT, the

DSS provides the tribunal with a Statement of Case which is a typed

version of the claimant's service records including service medical

records, subsequent medical reports, medical reports obtained at the

request of the DSS doctor, a statement outlining the reasons of the

Secretary of State for Social Security for the decision and possibly a

statement of the DSS doctor of the evidence considered, the conclusions

reached and the reasons for the conclusions. A further appeal from the

PAT lies on a point of law to the Court of Session in Scotland, either

with the leave of the PAT or of the Court of Session itself. Such an

appeal could be made on the basis that the PAT had erred in law by

"acting upon an incorrect basis of fact" (Secretary of State for

Education and Science v. Tameside MBC [1977] AC 1014).

3. Public Records

68. Public Records are defined by section 2 of the schedule to the

Public Records Act 1958 as administrative and departmental records

belonging to Her Majesty, whether in the United Kingdom or elsewhere, in

right of Her Majesty's Government in the United Kingdom and, in

particular, records of, or held in, any department of Her Majesty's

Government in the United Kingdom or records of any office, commission or

other body or establishment whatsoever under Her Majesty's Government in

the United Kingdom. The direction of the Public Records Office and the

execution of the Public Records Acts 1957 and 1968 is the responsibility

of the Lord Chancellor. Pursuant to section 3 of the 1958 Act, records

which have been selected for permanent preservation are transferred not

later than thirty years after their creation to the Public Records Office

or other approved location (and thereby to the public domain) and those

not so selected shall be destroyed or disposed of in another way.

69. Section 5 of the Public Records Act 1958, as amended by the Public

Records Act 1967, provides that public records (other than those to which

the members of the public had access before their transfer to the Public

Records Office) shall not be available for public inspection until thirty

years after the creation of the records or such longer or shorter period

as the Lord Chancellor may, with the approval or at the request of the

Minister or other person who appears to the Lord Chancellor to be

primarily concerned, consider.

70. A letter dated 23 May 1994 from the Parliamentary Under-Secretary

of State for Defence to a Member of Parliament, written in response to

a complaint as regards access to public records in relation to the United

Kingdom's nuclear test programme, referred, in particular, to 14 "closed

files" identified by the applicants' researcher and confirmed after re-

examination of those files that there were in fact 18 such files, that

one file had been released, that four files would remain "closed", that

five files could "not be traced" and that five had been destroyed due to

an accounting process which was "looser" in the 1980s than it is today.

The letter then explained that the Ministry of Defence found it

convenient to fulfil its obligation under the Public Records Acts by

conducting two reviews - one at the 5 year point and one at the 25 year

point. It stated that records that survive the selection process of the

25 year review, but are deemed too sensitive to release at the normal 30

year point (like those identified by the applicants' researcher) remain

closed under the provisions of either section 3(4) or 5(1) of the Public

Records Acts and that the files in question were withheld under section

3(4) on the grounds of national security subject to review at least every

ten years.

71. A letter dated 29 November 1994 from a Member of Parliament to the

applicants' representative noted that documents relating to the health

and safety of the participants who took part in the tests as well as

recorded radiation levels on Christmas Island were withheld from public

scrutiny beyond the thirty year period set out in the Public Records Acts

for "national security and personal sensitivity reasons". It also noted

that an attempt, by way of motion in the House of Commons in January 1993

to urge the Government to reconsider its decision to retain the said

documents and for the appointment of an independent assessor to assess

the national security reasons for the continued retention, was

unsuccessful. It concluded that at that time the said documents were not

in the public domain and were unavailable for national security reasons.

72. Under section 6 of the Pensions Appeal Tribunal (Scotland) Rules

1981 ("the 1981 Rules") a claimant for a war pension can request the

President of the PAT to direct the Secretary of State to produce to the

PAT official documents and information. If the President considers the

documents and information relevant, he can issue the direction. The

Secretary of State can issue the documents and information to the PAT on

the basis, in the public interest, that they are not made public or he

can refuse to disclose such documents at all in the interests of national

security. Once the documents are refused on grounds of national security,

the PAT must decide if the absence of such records would prejudice the

claimant's case - if not, the PAT must continue the examination of the

claimant's case without the records and, if so, the PAT must adjourn

their consideration of the claimant's case until the national security

factor is no longer an issue.

73. In 1995 the President of the PAT, which was considering an

application by a Christmas Island veteran (for a disability pension for

radiation linked larynx and skin cancer), made an application under

section 6 for certain public records which might support the claim. The

response, from the Deputy Departmental Record Officer dated 4 May 1995,

indicated that certain files would be released but that others entitled

"Operation Grapple, personnel safety precautions" were declared

temporarily lost and those entitled "Operation Grapple : consideration

of results" could not be released due to the "very sensitive nature of

the contents of the file that relates to the design details of the

devices used in 1957. To release this file would assist a third party

acquire a nuclear capability and its continued retention is part of

Majesty's Government's> commitment to prevent proliferation".

74. It is possible to apply under the Administration of Justice

(Scotland) Act 1972 for an order requiring production of medical records

in anticipation of civil litigation, to obtain an order for Specification

(production) of Documents, in the context of Scottish court proceedings

to recover damages, in order to require government departments to produce

records and to apply for a Writ of Subpoena Duces Tecum in the context

of an action for damages, which writ requires the production to court of

documents held by a third party.

75. The Access to Health Records Act 1990, which sets down certain

rights of persons to, inter alia, medical records, came into force on 1

November 1991. It relates only to records compiled after 1 November 1991.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

76. The Commission has declared admissible the applicants' complaints

about non-disclosure of contemporaneous records in relation to the test

detonations at Christmas Island in 1958.

B. Points at issue

77. The points at issue are whether there has been:

- a violation of Article 6 para. 1 (Art. 6-1) of the Convention;

- a violation of Article 8 (Art. 8) of the Convention; and

- a violation of Article 13 (Art. 13) of the Convention.

C. The evaluation of the evidence

78. The Commission has, prior to dealing with the applicants' complaints

under specific Articles of the Convention, evaluated the evidence on

certain disputed facts relating to the creation and existence of relevant

contemporaneous records and the results of the NRPB and AWE analyses. The

Commission notes that it has taken into consideration in its evaluation

the conduct of the parties in responding to questions raised by the

Commission, and in particular, the clarity and completeness of those

responses (mutatis mutandis, Eur. Court HR, Ireland v. the United Kingdom

judgment of 18 January 1978, Series A no. 25, p. 65, para. 161).

1. Relevant contemporaneous records

(a) The purpose of the test detonations

79. In the first place, the applicants submit that one of the purposes

of the test detonations was to test the effects of radiation on them and

that, accordingly, relevant monitoring records must have been created.

They refer in particular to the line-up procedure used and to various

Government memoranda.

80. In particular, the first applicant claims that on 28 April 1958 he

was lined up with other men on a beach on Christmas Island without

protective clothing for the first megaton explosion. They were ordered

to stand, with their eyes closed and hands over their eyes, with their

backs to the air detonation, approximately eleven miles (18 kilometres)

away, of a megaton nuclear bomb. Immediately after the detonation, the

men were ordered to turn and face the explosion. He then describes in

detail the immediate effects on him together with his subsequent illness

and treatment including immediate searing heat and air blast, diarrhoea,

nausea and sickness together with severe blistering of the skin on his

face, arms and hands which required medical treatment at the military

tent hospital for approximately 10 days consisting of various

applications of medications to the skin and tablets for nausea.

Thereafter, his condition improved with the exception of numbness and

paralysis of his right leg, which the applicant experienced 1-2 weeks

after the detonation and for which the applicant was re-admitted to the

tent hospital for approximately two weeks where he received a plaster

cast for his leg.

81. Again, on 2 and 11 September 1958, the applicant claims that he and

other men were ordered onto the beach to line up for two further

detonations. On 2 September he was wearing only a shirt and shorts.

Subsequently, tablets were administered to him by the tent hospital

personnel over a seven day period for his diarrhoea and nausea and he was

also ordered to take a series of decontamination showers following each

of which he was passed through a radiation monitoring machine. After the

second detonation the applicant submits that he received further

treatment at the tent hospital for nausea and fever and required a daily

administration of tablets over a four to five day period. On 22 August

1958 and 23 September 1958 the applicant was ordered to continue

operating a bulldozer during the explosion in the vicinity of two

detonations. The applicant recalls that the relevant service orderlies

who administered the treatment he described above made notes and that,

while he was in hospital for the numbness in his leg, he remembers

entries being made on his medical chart.

82. The second applicant claims that on 28 April 1958 he and other

members of the crew were ordered on deck to witness a megaton nuclear

detonation in the atmosphere which detonation was at a distance of 12 to

20 miles (19-32 kilometres). He alleges that the men were ordered to turn

their backs to the initial detonation and to face the ensuing blast. The

applicant claims that he suffered from skin burns, nausea, exhaustion and

breathlessness for which he received medical treatment.

83. The applicants also refer to certain official documents arguing that

they clearly indicate that the Government had meant to expose them to

radiation and to discover the effects of radiation on them with and

without various types of protection (see paragraphs 17-22 above).

84. The Government deny, in their observations of 14 June 1995, that the

purpose of the detonations was to test the effects of radiation on

servicemen. The Government deal for the first time with the line-up

procedure in observations dated 25 May 1995 in a related application (No.

23413/94, Dec. 28.11.95). In those observations the Government referred

to a "mustering" procedure by which men were ordered to line up on the

beach, to face away from the detonations and then to immediately face the

detonation site thereafter. The Government explained that this procedure

was for the servicemen's benefit namely, to ensure that they did not look

at the initial flash as that would injure their eyes.

85. In the present application, the Commission posed a question by

letter dated 19 May 1995 as to whether it was disputed that the

applicants were ordered as indicated by them (including references to a

line-up procedure) to participate in the nuclear testing in 1958. The

Government responded by confirming that the applicants were serving in

the armed forces in 1958, that this required them to undertake duties in

support of the nuclear test programme (by, for example, driving a

bulldozer), that it was denied that the devices were tested on the

applicants and that the purpose of the tests was to test the devices

themselves (Government's observations dated 14 June 1995). It was only

in the Government's later observations (dated 1 February 1996) that the

Government accepted that the applicants were lined-up along with other

service personnel in the open air in light clothing at the moment of the

nuclear detonations, ordered to look away from the direction of the

initial flash and then ordered to turn around in the direction of the

blast. However, this procedure was, according to the Government, for the

applicants' benefit, namely to ensure that they did not look at the

initial flash as that would injure their eyes.

86. As regards the various memoranda referred to by the applicants, an

extract from the 1953 memorandum (see para. 17 above) was included in the

Statement of Facts sent to the Government with the initial communication

of the applications. No comment was made by the Government in relation

to the terms of the memorandum until its observations in the above-

mentioned related application dated 25 May 1995. Following a direct

question posed in that respect in the present applications, the

Government stated, in its observations dated 1 February 1996, that the

1953 memorandum does not indicate that the effects of radiation on

servicemen were to be established by exposing those persons to radiation

but to establish, through the use of, for example, dummies and radiation

level recordings, the likely effects on servicemen. As to the other

memoranda the Government deny that they support the applicants'

allegations and submit that those memoranda have been taken out of

context by the applicants.

87. The Commission notes that the applicants raise the motivation behind

the test detonations as a basis for arguing that the purpose of the tests

detonations was to discover the effects of radiation on servicemen, that

it would be logical that contemporaneous records monitoring the physical

effects on the applicants (including necessary medical treatment) must

have been created and that these have not been disclosed. However, the

Commission considers that even if the reason for the test programme was,

inter alia, to test the effects of radiation on servicemen leading to the

consequent creation of such monitoring records, this gives no indication

of how long such records were preserved. Accordingly, the Commission

cannot establish in this way if such records existed on the acceptance

of the right of individual petition by the United Kingdom (14 January

1966) or for any period thereafter.

88. However, the Commission notes the apparent reluctance on the part

of the Government to accept expressly that the applicants were ordered

to line up in the open air at the time of the detonations and considers

the explanations of the Government as to the purpose, as submitted by the

applicants, of the test detonations and as to the meaning of the

memoranda to be unconvincing. It notes, in particular in this latter

respect, that the Government have not given any details of any dummies

used or of how testing on inanimate objects could amount to a test of the

physical effect and impact of radiation on human beings. Accordingly, the

use of the line-up procedure and the texts of the Government memoranda

constitute, in the Commission's opinion, a basis for a reasonable anxiety

and concern in the minds of the applicants as to the nature and impact

of their participation in the nuclear test detonations.

(b) Medical records

89. Secondly, the applicants submit that there are coincidental gaps in

their service medical records disclosed to them which gaps should contain

detailed notes of their medical treatment after the explosions and which

gaps correspond with their exposure to the test detonations. In addition,

the first applicant compares the detailed and frequent entries both

before his transfer to Christmas Island and after the detonation period

with the detailed medical treatment he received during the detonation

period and the lack of entries reflecting such treatment. He has also

submitted a photograph of himself taken in 1958 on Christmas Island

wearing a cast on his leg. He claims that the cast was applied due to

paralysis after a detonation whereas his statement on discharge refers

to his breaking his ankle in May 1958 and to eight weeks medical

treatment in this respect. However, none of the service medical records

for Christmas Island disclosed to him to date contain any record of

treatment for a leg injury or of the application of a plaster cast. He

also refers to the failure to disclose records of his treatment, in the

United Kingdom, in Otterburn hospital for spasms and internal

haemorrhaging. The second applicant refers to the alleged disappearance

of the x-ray films of 2 February 1961 which related to his lung illness.

He claims that the x-rays were required because of his complaints of

exhaustion and breathlessness and that the full plate x-rays were taken

on 2 February 1961 because of a "pick up" found after the x-ray on 1

February 1961. Both applicants state that they did not mention diarrhoea,

nausea, skin blistering or leg paralysis in their service discharge

statements of 2 September 1959 and 2 February 1961, respectively because

the question posed related to injuries then suffered and they were not

suffering from those particular injuries on discharge.

90. The Government refer to various safeguards (including the line-up

procedures) in place on Christmas Island to avoid exposure of personnel.

They dispute that the applicants were ill as they claim since there are

no medical notes reflecting this and they point out that the applicants

did not refer at all, during their invaliding examination on discharge

from the army, to their having been ill as they allege. As regards the

first applicant's photograph, the Government submit that this would be

consistent with the applicant's statement on discharge but the Government

do not comment on the absence of any records in relation to the

application of the plaster cast and the relevant treatment. As to the

second applicant's x-rays, the Government submit that the x-rays of 2

February 1991 were part of a routine screening operation, that the

results were all negative and that the reports on the x-rays of 2

February 1991 have been supplied. The Government also submit that it

would have been impossible to give persons such significant doses of

radiation (to produce the immediate after effects the applicants allege)

without killing them with the blast and heat from the weapons and they

refer to a publication in this respect ("The effects of Nuclear Weapons"

by Glasstone and Dolan, Third Edition published in 1977).

91. However, the Commission notes that, even if it could be concluded

from the applicants' submissions that medical records were created

treating the applicants after each detonation, the evidence submitted by

the parties gives no indication of how long such records were preserved.

Accordingly and as the Commission found at paragraph 87 above, the

Commission considers that it is not established by the above submissions

that such medical records existed on the acceptance of the right of

individual petition by the United Kingdom (14 January 1966) or for any

period thereafter.

(c) Other relevant contemporaneous documents

92. The Commission notes that, in their observations dated 1 February

1996, the Government have acknowledged that the records of the explosive

yields of the Christmas Island tests were placed in the public domain in

1993 and that the AWE report (provided with the Government's

observations dated 14 June 1995) came into the public domain in 1993 when

it was placed in the House of Commons library.

93. As to the original contemporaneous radiation level records on

Christmas Island, the Commission raised a question of the Government as

to whether contemporaneous radiation level records are classified and,

if so, for what reason they are withheld from the applicants as distinct

from public scrutiny. The Government responded that classified documents

do not contain those records, that environmental radiation monitoring at

Christmas Island is not "currently" classified, that "no information was

withheld from the applicants as there was, and is, no reason to do so"

and the Government referred to the AWE report as "a copy summary of such

information".

94. Further to the Commission's question subsequently put to the

Government as to the whereabouts of the documents containing the original

contemporaneous recordings of radiation levels on Christmas Island in

1958 and as to when these documents were made available to the public,

the Government responded (observations of 1 February 1996) that records

relating to the "atmospheric nuclear test programme" have been stored at

the AWE Aldermaston. They stated that "information from such records" has

been summarised in the AWE report which was placed in the House of

Commons in late 1993. The Government went on to point out that the

explosive yield figures now available can be used to calculate radiation

levels at any specified distance from the point of detonation.

95. The applicants point out that the AWE report was not available until

1993, is not even an official report, is erroneous in itself and that,

in any event, it does not contain the original contemporaneous radiation

level records. They also submit that it is scientifically erroneous to

submit that radiation levels can be deduced from the yield records, the

former depending on a number of external factors apart from the yields

from the devices.

96. The Commission considers the observations of the Government (in

particular those of 1 February 1996) in response to a clear question in

relation to the whereabouts and date of release of the radiation level

records to be reluctant and lacking in candour. The question as to when

the records were released into the public domain was effectively

responded to by noting that the AWE report was released in late 1993.

However, the AWE report is a summary report and does not constitute or

contain the original radiation level records. In light of this conclusion

as to the Government's conduct in the context of this application and in

view of the matters outlined above under the heading "Relevant

Background" (see, for example, paragraphs 28, 35 and 70), the Commission

considers that there is a "co-existence of sufficiently strong, clear and

concordant inferences" allowing it to establish that radiation level

records were created, are stored at the AWE Aldermaston and have not been

released as yet into the public domain (see Eur. Court HR, Ireland v. the

United Kingdom judgment, loc. cit.). Those yield and radiation level

records are hereinafter referred to as the "relevant records".

97. The Commission further notes that the Government have not at any

time indicated to the Commission the reasons for the extension of the

period (beyond the initial thirty year period) during which the relevant

records were withheld from the public domain. By the same token the

Government have not disputed the national security aim proffered by the

applicants (the Member of Parliament's letter of 29 November 1994, the

letters of the Deputy Departmental Record Officer dated 4 May 1995 and

of the Parliamentary Under-Secretary of State for Defence dated 23 May

1994). Accordingly and bearing in mind the nature of the documents in

question, the Commission considers that it must proceed on the basis that

the relevant records were withheld from the public domain due to national

security concerns on the part of the Government.

2. The NRPB and AWE reports

98. The applicants maintain that they have been adversely affected by

their exposure to radiation. They challenge in some detail the NRPB and

AWE reports. They note that, while the 1985 NRPB results demonstrated

that levels of leukaemia and multiple myeloma were three times higher in

the veterans' grouping and that leukaemia was a "cancer most closely

associated with ionising radiation", the study concluded that this

difference was due to the extraordinarily low incidence of those diseases

in the control group, which conclusion would seem to undermine the very

rationale of using a control group. In addition, the NRPB did not have

access to the classified documents and all the necessary information in

terms of the veterans and the control group was supplied to the NRPB by

the Ministry of Defence.

99. In relation to the 1993 survey, the applicants question in detail

the basis for the inclusion and exclusion of certain servicemen in and

from the study. They also challenge the sufficiency of the information

on participants with cancer and the conclusion of the report in relation

to the incidence of leukaemia in veterans. The applicants submit that the

report's conclusions contain inferences which contravene the comparison

hypotheses upon which the studies were based. The applicants also argue

that they have not been able to challenge the evidentiary quality of the

conclusions in the NRPB reports in a domestic court precisely because of

the non-disclosure of contemporaneous records. They challenge the AWE

report on the basis that it is merely descriptive and a summary, that the

report expressly states that it does not necessarily represent the

official views of the AWE and that its conclusions defy the basic

statistical references.

100. The Government submit that the statistical surveys and analyses

completed by the NRPB and the AWE clearly demonstrate that the radiation

levels were insignificant and not dangerous and that there is no

increased mortality or cancer rate in the test participants.

101. The Commission does not consider that it is necessary to comment on

the quality or the results of what are technical documents analysing a

complex and specialised area. It can conclude, however, that the

applicants have raised detailed and substantive grounds to challenge

those reports and it accepts the applicants' contention that the primary

data upon which those reports were based (including the relevant records)

are required before they would be in a position to usefully challenge the

results reported.

102. Having established the above, the Commission has considered below

the applicants' complaints under specific Articles of the Convention in

relation only to the relevant records. In view of the contents of the

parties' observations since admissibility, the Commission observes that

it has considered the effectiveness of any avenues open to the applicants

to obtain the relevant records with the merits of the application (Eur.

Court HR, Kremzow v. Austria judgment of 21 September 1993, Series A no.

176-A).

D. As regards Article 6 para. 1 (Art. 6-1) of the Convention

103. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant,

reads as follows:

"1. In the determination of his civil rights and obligations ...,

everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal established

by law."

104. The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that they did not have effective access to the PAT due to non-

disclosure of records.

1. Applicability of Article 6 para. 1 (Art. 6-1) of the Convention

105. The Commission considers that Article 6 (Art. 6) of the Convention

applies to the applicants' complaint since the determination of their

right to a disability pension constitutes a determination of their "civil

rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention (Eur. Court HR, Schuler-Zgraggen v. Switzerland judgment of

24 June 1993, Series A no. 263).

2. Compliance with Article 6 para. 1 (Art. 6-1) of the Convention

106. The applicants argue that without the relevant records they cannot

raise, by way of reliable evidence, a reasonable doubt in their favour

that their illnesses are attributable to service and that they are,

accordingly, denied effective access to the PAT without those records.

The Government essentially argue that the applicants were not denied

access to any documents, that the applicants had therefore effective

access to the PAT and to the civil courts and that the PAT had all of the

applicants' medical records before it. In any event, the Government point

out, inter alia, that the applicants were not test subjects but rather

participated in support activities in relation to the tests, dispute the

applicants' account of their illnesses and note that the NRPB and AWE

reports indicate that there were no adverse effects on the applicants by

reason of that participation.

107. The Commission recalls that Article 6 (Art. 6) of the Convention

guarantees a right of effective access to court which right can be

subject to certain limitations. While the States enjoy a certain margin

of appreciation in this respect, any limitations on access must 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, the

limitation must have a legitimate aim and the means employed must be

proportionate to that aim (Eur. Court HR, Fayed v. the United Kingdom

judgment of 21 September 1994, Series A no. 294, pp 49-50, para. 65).

While all rights guaranteed by the Convention are intended to be

practical and real rather than theoretical or illusory, this is

particularly so of the right of access to court in view of the prominent

place held in a democratic society by the right to a fair trial (Eur.

Court HR, Airey v. Ireland judgment of 9 October 1979, Series A no. 32,

pp. 12-13, para. 24).

108. The Commission also recalls that it has established above, that the

relevant records were not (in the case of the yield records) and are not

(in the case of the radiation level records) in the public domain for

national security reasons (see paragraphs 92 and 96-97) and that,

accordingly, the applicants did not have access to the yield records

until at least 1993 and have not had access to the radiation level

records to the present date. It further recalls that the first

applicant's initial claim for a pension commenced on 1 April 1984 and the

second applicant's on 10 July 1970. The Commission must therefore

consider whether the limitations on the applicants' access to the

relevant records constitutes, in the particular circumstances of their

cases, a proportionate limitation on their right of access to the PAT

bearing in mind the legitimate aim of national security.

109. On the one hand, the Commission accepts that a certain control of

access to public records raising national security issues could in

principle be compatible with the obligations under Article 6 (Art. 6) of

the Convention taking into account the particular sensitivity of national

security issues and the State's margin of appreciation. However, the

Commission would note, in this respect, that security concerns can vary

(for example, security concerns about design details of devices used

could be different from any security concerns about records relating to

radiation levels) and that such concerns can also change with the passage

of time. Moreover, the Commission considers that the mere assertion of

security concerns, or the recognition by it of possible security

concerns, does not dispense the Commission from making an appropriate

assessment of the weight and relevance of such concerns.

110. On the other hand, the Commission considers, in the first place,

that the applicants have a strong and legitimate interest in obtaining

access to the relevant records for the following reasons. The Commission

notes its findings, in the context of the motivation for the test

programme, as to the reasonableness of the applicants' concerns about the

nature and impact of their participation in the test programme in

Christmas Island (paragraph 88).

111. It would also add, in this respect, the relative strength of the

devices detonated at Christmas Island as opposed to those detonated at

Nagasaki, Hiroshima and Maralinga, the relative proximity of the

applicants to the epicentre of the detonations as opposed to those

persons accepted as negatively affected by and, accordingly, compensated

for the Bikini Island detonations. The Commission would further note, in

this respect, the results reported by the MRC and the MRC committee in

1947, 1957 and 1960 together with the Prime Minister's reported reaction,

upon which reaction the Government have not commented. The criticisms of

the Australian Royal Commission in relation to the manner in which the

test detonations had been conducted by the United Kingdom in Australia

in 1957 (a year before the Christmas Island detonations), that

Commission's recommendations and the agreement by the United Kingdom

Government to pay monies in settlement of claims in connection with the

test programme are also noted. The Commission also recalls the number of

admitted claims before the Marshall Islands Nuclear Claims Tribunal and

the total compensation awarded by that tribunal. Furthermore, the

Commission agrees with the applicants that the relevant records would

constitute an objective starting point as regards the precise nature and

impact of their participation in the test programme and, consequently,

as regards their claim for a disability pension based on alleged

radiation related illnesses.

112. Secondly, the Commission has had regard to the means available to

the applicants to obtain the relevant records and has found that those

means were not feasible for the present applicants for the following

reasons.

113. In this context, the Commission notes that the first step for an

individual seeking access to public records is to ascertain, via the

public records office, what documents are and are not in the public

domain. However, the Commission considers it relevant to highlight a

number of difficulties particular to the applicants' cases surrounding

the public records system. The United Kingdom's nuclear test programme

was, by any standards, an extremely complex and technical matter.

Consequently, even the general nature and ambit of the programme would

be difficult to clarify. In addition, it was also an enormous undertaking

(there were over 20,000 servicemen involved) and, accordingly, the volume

of documents created would reflect the size and complexity of the

operation. Moreover, the records relating to the test programme in the

Pacific have been released into the public domain on a piecemeal basis -

such records would constitute, by definition, public records and they

would therefore have to be withheld from the public domain for a certain

period of time or destroyed. Certain of those records appear to have been

reviewed, initially withheld, further reviewed and then released (the

yield records). Certain records cannot now be traced by the relevant

records office. Certain records, classed as documents to be withheld on

grounds of national security, have been accidentally destroyed and

certain of such records have not been yet released (the radiation level

records). Furthermore, the test programme took place many years ago

(beginning in 1952 and ending in 1967) ensuring, in light of the above-

described process, some difficulty in tracing records which continue to

exist, are in the public domain or remain withheld from the public

domain. Finally, any person in the process of tracking down public

records relies on the replies of public authorities as to the

whereabouts, contents and nature of such records.

114. For these reasons, the Commission considers that it was difficult

in the extreme for the applicants to determine what contemporaneous

records would have been created and withheld, what records had been

destroyed or could not be traced, how such records had been labelled or

categorised and, accordingly, to what type or category of record they

should attempt to obtain access. In such circumstances, the Commission

considers it justifiable to view the public records system as, for all

practical purposes, inaccessible to the present applicants.

115. The Commission notes that the Government point out that civil

proceedings for compensation mean that ancillary discovery processes

could be commenced by the applicants to obtain the records they seek. The

Government submit that the Crown immunity contained in section 10 of the

Crown Proceedings Act 1947 was set aside by the Pearce judgment in 1988

(loc. cit.). The applicants strongly contest this assertion. The

Commission recalls its comments as regards the effectiveness of such a

civil remedy in its admissibility decision in the present applications

(Nos. 21825/93 and 23414/94, Dec. 28.11.95) and in the above-mentioned

related application (No. 23413/94, Dec. 28.11.95). In any event, the

Commission does not consider that it is an answer to a complaint about

a failing in relation to the PAT system that the applicants should seek

access to records and compensation elsewhere. In the same way as the

Court concluded that Article 5 para. 4 (Art. 5-4) of the Convention

presupposed the existence of a procedure in conformity with its

requirements without the necessity of instituting separate legal

proceedings in order to bring it about (Eur. Court HR, Singh v, the

United Kingdom judgment of 21 February 1996, to be published), the

Commission considers that Article 6 para. 1 (Art. 6-1), insofar as it

guarantees effective access to court, presupposes such effective access

without the necessity of instituting separate legal proceedings.

116. The applicants applied for disability pensions on the grounds that

they suffered from radiation related illnesses and, in this context, the

Commission notes section 6 of the 1981 Rules which deals with access to

official documents and information in the context of pensions

proceedings. However, where documents are covered by national security,

the Secretary of State can refuse to produce such documents and the

applicants have provided evidence that requests by the President of the

PAT for records in relation to the Christmas Island detonations are

refused on the grounds of national security. Furthermore, on receipt of

such a refusal from the Secretary of State, the PAT must decide if the

absence of such records would prejudice the claimant's case - if not, the

PAT has no choice but to continue the examination of the claimant's case

without the records and, if so, the PAT must adjourn its consideration

of the case for an indefinite period namely, until the national security

factor is no longer an issue. In the case of the yield records the

adjournment would have been approximately eight years after the first

applicant's first application to the PAT and almost twenty-three years

after the second applicant's first application to the PAT. In the case

of the radiation level records, the Commission has established that the

national security objection to disclosure continues to the present day.

117. Moreover, the Commission considers that in such a specialised field

(a nuclear test programme), the task of the assessment of any causal link

between the detonations and the applicants' illnesses called for an

equally specialised enquiry and decision-making procedure which procedure

would take account of the unusual nature of the matter at issue, the

enormity of the test programme, the consequent limited range of

independent qualified expertise together with any compelling security

considerations. It notes, in this respect, that any expertise in this

field would be highly specialised and would involve close scrutiny of,

inter alia, relevant contemporaneous records as regards the detonation

programme at Christmas Island, the 1988 and 1993 NRPB reports, the AWE

report, the BNTVA report, any relevant studies concerning the detonations

at Nagasaki and Hiroshima together with such reports concerning the

United Kingdom and United States test programmes in the Pacific and

Australia. The Commission notes, in contrast, the relatively bald

assertions of the Ministry of Defence in response to the DSS's enquiries

during the pensions proceedings (see paragraphs 41 and 56) that the first

applicant's exposure to radiation was not sensibly different from zero

and that there was no record to substantiate the second applicant's story

of an atomic bomb blast.

118. However, there is nothing to indicate that the DSS and the PAT, as

constituted, were equipped with the necessary powers, experience or

scientific qualifications to undertake the above-described task or that

these bodies had any possibility of dealing with cases other than on an

individual basis. It notes, in this respect, that the Governments of

Australia and the United States considered it necessary to set up special

bodies of enquiry and decision to deal with claims from persons alleging

injuries caused by nuclear test detonations.

119. The Commission has commented above (paragraph 109) on any national

security concerns relating to the relevant records and on its role in

that respect. However, the Commission recalls its findings that the

applicants had a strong interest in obtaining access to the relevant

records and that they had no feasible means to obtain those records. In

such circumstances, the Commission considers that the applicants' access

to the relevant records and, thereby, to the PAT to obtain disability

pensions was more theoretical than real (within the meaning of the above-

mentioned Airey judgment) and, as such, a disproportionate limitation on

their right of access to the PAT. Accordingly, the Commission finds that

the applicants did not have effective access to court within the meaning

Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

120. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

E. As regards Article 8 (Art. 8) of the Convention

121. The applicants complain under Article 8 (Art. 8) of the Convention

that the non-disclosure of records constituted an unjustifiable

interference with their private lives. That Article, insofar as relevant,

reads as follows:

"1. Everyone has the right to respect for his private ... life,

..."

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the law

and is necessary in a democratic society in the interests of

national security, ...."

122. The applicants contend, inter alia, that their participation in the

test programme constituted a significant event in their young lives and

that the relevant records are essential for their understanding of the

nature and impact on them of that participation. They refer to the Gaskin

case (Eur. Court HR, Gaskin v. the United Kingdom judgment of 7 July

1989, Series A no. 160, p. 15, paras. 35-37) and submit they are in an

equivalent position to that applicant who wanted unimpeded access to his

medical file in order to establish his medical condition. They argue that

the release of the records in the Gaskin case was complicated by a

confidentiality problem which does not exist in this case in relation to

the detonation related medical records. The applicants dispute that

current medical examinations could establish the contemporaneous facts

in relation to the nature and impact of their exposure to radiation which

took place approximately 38 years ago. It is necessary, rather, to

establish these facts from contemporaneous records before medical

conclusions can now be drawn as to their current medical conditions.

123. The Government submit that the Gaskin case did not establish that

an individual has an "unfettered right of access" to information held

about him by the State and that the Gaskin case can be distinguished on

its facts as the nature of the information withheld from Mr. Gaskin was

fundamentally different from that which the applicants allege is being

withheld from them. In this latter regard, the Government point out that

the information sought in the Gaskin case was of a highly personal nature

which could not otherwise be found by that applicant. In the present case

the Government argue that the information sought does not purport to

provide insight into the applicants' identities as human beings and,

furthermore, can be pieced together from the applicants' memories or be

acquired from other sources (for example, from their own doctors).

124. The Commission is satisfied that the relevant records constitute the

only source of certain primary data from which the applicants can begin

to construct the actual nature and physical impact of their participation

in the test programme, which participation can be reasonably said to

amount to a highly significant event in their young lives. Accordingly,

in the same way in which the applicant's file in the Gaskin case related

to his private and family life, the Commission considers that the

relevant records relate to the applicants' private lives.

125. The Commission considers that the substance of the applicants'

complaints under Article 8 (Art. 8) is that the State has "failed to act"

(see, for example the Airey v. Ireland judgment, loc. cit., p. 17, para.

32) in that it failed to disclose the relevant yield records prior to

1993 and that it has failed to disclose the radiation level records to

date. The Commission recalls that, although the essential object of

Article 8 (Art. 8) of the Convention is to protect the individual against

arbitrary interference by the public authorities, there may, in addition,

be positive obligations inherent in the respect for private life which

would address a "failure to act" complaint. In determining whether or not

such an obligation exists, regard will be had to the fair balance that

has to be struck between the general interests of the community and the

interests of the individual and in striking this balance the aims

mentioned in the second paragraph of Article 8 (Art. 8) may be of a

certain relevance (see, for example, Eur. Court HR, Rees judgment v. the

United Kingdom judgment of 17 october 1986, Series A no. 106, p. 15,

para. 37). Accordingly, the matter at issue is, in the opinion of the

Commission, whether a positive obligation arose under Article 8 (Art. 8)

of the Convention as regards the United Kingdom Government's provision

of access to the relevant records to the applicants.

126. The Commission also recalls that the essential complaint of the

applicant in the Gaskin case was of a failure of the Government to act

and, in establishing whether such a positive obligation on the Government

existed, the Court balanced that applicant's interest in reconstructing

part of his care and treatment over a significant period of his young

life and the wish to maintain the confidentiality of contributors to the

records in question. It concluded that the lack of an independent

authority finally deciding on access to the records where a contributor

fails to answer or withholds consent did not constitute a proportionate

response to the applicant's interests even bearing in mind the importance

of the legitimate aim of the confidentiality of the relevant public

records.

127. The Commission accepts the Government's argument that the Gaskin

case did not establish that an individual has an "unfettered right of

access" to information held about him by the State and indeed notes that

the Court specifically pointed out that they were not establishing such

a right in general but commenting on the particular circumstances

presented. It is, accordingly, the Commission's task to determine the

"fair balance" of the competing interests involved in the particular

circumstances of the present cases and consequently, the existence of a

positive obligation as regards the disclosure of the relevant records to

the applicants.

128. As in relation to Article 6 para. 1 (Art. 6-1) of the Convention,

the Commission accepts the national security issues involved in relation

to the relevant records and the particular sensitivity of such issues.

It also notes that, in accordance with Article 8 para. 2 (Art. 8-2) of

the Convention, a certain control of public records raising national

security issues could in principle be considered to be compatible with

the Government's obligations under Article 8 (Art. 8) of the Convention,

taking into account the State's margin of appreciation.

129. On the other hand, the Commission considers, for the reasons

outlined above in relation to the complaint under Article 6 para. 1 (Art.

6-1), that it was reasonable for the applicants to be concerned about the

nature and impact of their participation in the test programme and that

they had a strong and legitimate interest in obtaining access to the

relevant records. The Government argue that the applicants could have

sought the relevant records by instituting certain proceedings. Despite

the Pearce judgment (loc. cit.) to which the Government refer, the

Commission considers that taking a civil action for damages, with its

ancillary discovery processes, to be an onerous task due to the Crown's

immunity which has been statutorily enshrined since 1947 and recently

statutorily confirmed in 1987 in relation to matters which arose prior

to 1987. The Commission has commented above (paragraph 116) on section

6 of the 1981 Rules which can be invoked in the context of proceedings

before the PAT. The Commission further notes its comments and findings

in such respects in its decisions as to the admissibility of the above-

mentioned related application (No. 23413/94, loc. cit.) and of the

present applications (Nos. 21825/93 and 23414/94, loc. cit.). Moreover,

such proceedings would be rendered an even more unlikely route to the

relevant records by the practical inaccessibility of the public records

system to the present applicants.

130. Moreover, the Commission is also satisfied that a separate issue

arises for its consideration under Article 8 (Art. 8) of the Convention

because, quite apart from any award of a pension, the Commission notes

the lack of any provision to date of any individual information or

explanations to the test participants as to the nature and impact on them

of their participation in the tests despite what the Commission accepts

as reasonable concerns in this respect on their part and the increasing

concern about early deaths of test veterans which led to the

commissioning of the first NRPB report. The Commission notes the

publication of the NRPB and AWE reports but this took place in 1988 and

1993, the applicants raised substantive and detailed challenges to those

reports and to the independence of those bodies and those reports cannot

be objectively scrutinised without the primary data upon which they are

based.

131. Accordingly for the particular reasons outlined above, the

Commission considers that the domestic system has not responded in a

proportionate manner to the applicants' strong and legitimate interest

in obtaining access to the relevant records and, accordingly, there has

been failure to fulfil the positive obligation on the United Kingdom

inherent in the applicants' right to respect for their private lives.

CONCLUSION

132. The Commission concludes, by 23 votes to 3, that there has been a

violation of Article 8 (Art. 8) of the Convention.

F. As regards Article 13 (Art. 13) of the Convention

133. The applicants also complain under Article 13 (Art. 13) of the

Convention that they do not have an effective remedy in relation to the

non-disclosure of relevant records, which Article reads as follows:

"Everyone whose rights and freedoms as set forth in this Convention

are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity."

134. The applicants submit that they have, at the very least, arguable

claims of a violation of Articles 6 and 8 (Art. 6,8) of the Convention

and maintain their argument that they have no effective domestic remedy

in that regard. The Government argue, inter alia, that the applicants

have no arguable claim in relation to the complaints raised and thus no

question arises to be considered under Article 13 (Art. 13) of the

Convention.

135. The Commission recalls the constant case-law of the Convention

organs that, where questions of civil rights and Article 6 para. 1 (Art.

6-1) arise, it is not necessary to make a separate examination of the

case under Article 13 (Art. 13) of the Convention because its

requirements are less strict than, and are absorbed by, those of Article

6 para. 1 (Art. 6-1) of the Convention (see, for example, Eur. Court HR,

R v. the United Kingdom judgment of 8 July 1987, Series A no. 121, p.

126, para. 90). In addition and in light of the Commission's conclusion

under Article 8 (Art. 8) above, it does not find that it is necessary to

consider the applicants' complaints under Article 13 in conjunction with

Article 8 (Art. 13+8) of the Convention.

CONCLUSION

136. The Commission concludes, unanimously, that it is not necessary to

consider the applicants' complaints under Article 13 (Art. 13) of the

Convention.

G. Recapitulation

137. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 120).

138. The Commission concludes, by 23 votes to 3, that there has been a

violation of Article 8 (Art. 8) of the Convention (para. 132).

139. The Commission concludes, unanimously, that it is not necessary to

consider the applicants' complaint under Article 13 (Art. 13) of the

Convention (para. 136).

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTLY DISSENTING OPINION OF

MM. S. TRECHSEL, F. MARTINEZ AND N. BRATZA

AS REGARDS ARTICLE 8 OF THE CONVENTION

While we have voted in favour of a violation of Article 6 in the

present cases for the reasons given in the Commission's report, we are

unable to share the view of the majority of the Commission that there has

been a separate breach of Article 8 of the Convention.

The essential complaint of the applicants concerns the non-

disclosure of relevant records and the consequent impact on their ability

to establish their claims for disability pensions.

The only relevant records which it has been established existed and

continue to exist are not medical records or documents containing data

or information of a personal nature concerning the applicants or their

involvement in the test programme, but records of a more general

character concerning levels of radiation during and following the nuclear

detonations. There is nothing to indicate that the relevant records make

any specific reference to the applicants or to their participation in the

test programme.

As the Commission has found, the failure to disclose the records

amounts to a denial of effective access to court within the meaning of

Article 6 para. 1 of the Convention. Having regard to this conclusion,

even assuming that the records may be said to relate to the private life

of the applicants, we have not found it necessary to reach a finding on

the question whether the non-disclosure of the same records also amounts

to a breach of the applicants' rights under Article 8 of the Convention.

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McGINLEY AND EGAN v. THE UNITED KINGDOM

McGINLEY AND EGAN v. THE UNITED KINGDOM