Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21825/93 Application No. 23414/94

by Kenneth McGINLEY by Edward EGAN

against the United Kingdom against the United Kingdom

The European Commission of Human Rights sitting in private on

28 November 1995, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 April 1993 by

Kenneth McGINLEY against the United Kingdom and registered on

12 May 1993 under file No. 21825/93 and the application introduced on

31 December 1993 by Edward EGAN against the United Kingdom and

registered on 7 February 1994 under file No. 23414/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the joint observations submitted by the respondent Government on

7 September 1994, the joint observations in reply submitted on

behalf of both applicants on 19 January 1995 and the further

joint observations of the Government received on 10 and 11

May 1995;

- the Commission's decision of 15 May 1995 to join the

applications, to request further information and observations and

to adjourn further consideration of the applications;

- the joint observations received from the Government on

20 July 1995 and those of the applicants received on 26 July and

26 August 1995.

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the parties may be summarised as

follows.

The applicants are United Kingdom citizens. The first applicant

was born in 1938 and he resides in Paisley. The second applicant was

born in 1939 and he resides in Glasgow. Both applicants are represented

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

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

A. Particular circumstances of the case : the first applicant

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.

The applicant claims that in 1958, pursuant to an identified need

for testing the effects of nuclear detonations on, inter alia,

men, he together with other troops were deliberately exposed to

five separate nuclear detonations as outlined below:

1. On 28 April 1958, the applicant was lined up with other men

on the beach of Christmas Island without protective clothing.

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.

After the detonation, the men were ordered to turn and face the

explosion. On doing so, the applicant experienced searing heat

and air blast.

2. On 22 August 1958, the applicant who was stripped to the waist

operating a bulldozer, was ordered to continue working while

another device was detonated in the vicinity.

3. On 2 September 1958, the applicant and other men were ordered

onto the beach to line up for exposure to a third air detonation

of a megaton nuclear device. He was wearing only a shirt and

shorts.

4. On 11 September 1958 the applicant and other men were lined

up again and exposed, on the beach of Christmas Island, to a

fourth air detonation.

5. On 23 September 1958, the applicant was ordered to continue

operating a bulldozer during the explosion in the vicinity of a

fifth air detonation device.

The applicant also submits that, three days after the detonation

on 28 April 1958, he suffered from diarrhoea, nausea and sickness

together with severe blistering of the skin on his face, arms and

hands. His face was so badly blistered that his eyes were closed.

The applicant claims that he received medical treatment at

the military tent hospital for approximately 10 days

consisting of various applications of medications to the

skin and tablets for the 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 and a walking stick

(the applicant has submitted a photograph of himself taken on

Christmas Island with a plaster cast on his leg and a walking

aid).

After the detonation on 2 September 1958 the applicant specifies

that tablets were administered to him by the tent hospital

personnel over a seven day period for his diarrhoea and nausea.

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 detonation on 11 September 1958 the applicant 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.

The applicant recalls the relevant orderlies who administered his

treatment completing medical notes for the above-described

treatment and while the applicant was in hospital for the

numbness in his leg he remembers entries being made on his

medical chart.

The Government do not dispute that the applicant was posted on

Christmas Island nor the fact that test detonations took place.

However, it is denied that the applicant was the subject of the

tests - rather the applicant participated in the testing of

nuclear devices by way of support activities. Furthermore, the

Government dispute that the applicant was ill as he claims.

The applicant was subsequently treated on Christmas Island

between 15 September and 23 September 1958 for a throat infection, on

28 October 1958 for tonsillitis and between 14 and 21 November 1958

with a splint for "facial palsy". The applicant was subsequently

hospitalised at the military hospital in Honolulu for influenza. This

treatment is reflected in his service medical records. The applicant

also claims that he was hospitalised, on his return home, in Otterburn

for spasms and internal haemorrhaging. However, this latter treatment

is not reflected in the service medical records which have been

disclosed to the applicant (though a coinciding hospitalisation for

influenza is).

On 10 November 1959 the applicant was given a medical discharge

from service. In his statement on discharge the applicant confirmed

that he had 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 hospital on Christmas Island. No contemporary medical record of this

treatment has been submitted.

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.

The applicant's 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 Pensions

Tribunal"). In seeking to substantiate his claim he obtained copies of

his military records.

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 the health problems which he alleged

resulted from exposure to radiation during his army service. Following

the applicant's claim that his medical records from the Military

Hospital on Christmas Island were missing from the military medical

file supplied to him, on 16 May 1984 the Department of Social Security

("DSS") made a departmental inquiry to the Ministry of Defence to

ascertain whether the applicant had been exposed to ionizing radiation

and whether or not he had been issued with a "film badge" on Christmas

Island to record radiation levels.

On 11 June 1984, the Ministry of Defence replied that from their

records the applicant had been 40 kilometres from the epicentre, was

therefore exposed to zero radiation and therefore it would not have

been necessary to issue him with a film badge.

On 30 November 1984, the applicant's claimed increase, 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 reassess his pension based on the duodenal ulcer, was

also refused.

On 21 January 1985 the applicant appealed to the Pensions

Tribunal against both these decisions of the DSS, claiming that his

service medical records had been doctored.

On 11 February 1985 the DSS initiated a departmental enquiry to

obtain all available medical records of the applicant between December

1957 and December 1958 together with extracts from the admission and

discharge books or, in the alternative, a declaration confirming the

medical treatment described by the applicant during that period.

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."

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".

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 ionizing radiation

on the skin. The DSS declined to follow this recommendation. In a

report by the Chief Medical Officer on 19 January 1987, two reasons

were given. Firstly, the evidence from the military medical records

showed no record of skin problems during the applicant's service.

Secondly, on the basis of the report from the Ministry of Defence, the

Secretary of State did not accept that the applicant was exposed to

ionizing radiation and therefore the point was irrelevant.

In his report of 24 June 1987, the urologist found that he could

come to no conclusion regarding the effect of ionizing radiation on the

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

stated to the urologist that "We have been assured by the Atomic

Weapons Establishment that was too far away from the

test sites to have been contaminated with any kind of ionizing

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.

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 initially argued that

an unedited version of his Statement of Case was not sent to his then

legal representatives but those representatives have now confirmed that

this unedited version has been found in the applicant's old files. The

Government confirm that the dispatch of the applicant's unedited

Statement of Case to his representatives (complete with a standard

explanatory form) was noted in a Pensions Tribunal Action Sheet as

having taken place on 5 May 1987.

The applicant's appeal to the Pensions Tribunal was rejected on

25 February 1988.

Subsequently the applicant's previous assessment in relation to

his duodenal ulcer was again reduced to 20 % and the applicant's

subsequent appeal against this assessment was rejected.

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 Ministry

of Defence were again consulted by the DSS and confirmed zero exposure.

It does not appear that the applicant has pursued 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.

The applicant contacted other veterans who had similar

experiences and together they formed the British Nuclear Test Veterans

Association ("BNTVA") in 1983. He alleges that since the formation of

the BNTVA he has been subjected to a campaign of surveillance and

harassment by the United Kingdom authorities. He complains in

particular of two incidents of sabotage to his car in 1985, during his

involvement in co-ordinating witnesses to appear before an Australian

Royal Commission on nuclear testing, of being watched and followed, of

interference with correspondence between him and third parties (one of

whom has apparently received an admission of such interference from the

Ministry of Defence) and of tapping of his telephone.

In support of these allegations the applicant relies, inter alia,

on evidence that letters and parcels have been opened and re-sealed,

on a series of unexplained noises and problems with his telephone line,

on a warning from a British Telecom engineer not to use his telephone

for confidential calls and on one specific incident where a Ministry

of Defence official attending the said Australian Royal Commission

hearings appeared to have specific knowledge of a confidential

telephone conversation which the applicant had with a third party. He

also refers to a number of instances of individuals seeking his

telephone number in connection with the BNTVA being told, incorrectly,

that he is ex-directory.

B. Particular circumstances of the case : the second applicant

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.

The applicant claims that, on 23 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). The men were

ordered to turn their backs to the initial detonation and

to face the ensuing blast. The applicant suffered from skin

burns, nausea, exhaustion and breathlessness, for which he

was treated in April, May and June 1958.

The Government submit that the detonation was at a distance of

60 to 70 miles (96-112 kilometres) and that subsequently the

applicant did not complain of any symptoms.

However, it is not disputed that 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

a follow-up full plate x-ray on 2 February 1961 in Portsmouth, England.

The Government claim that the x-rays were part of a routine

screening operation and that the results were all negative. The

applicant claims that the reason the x-rays were taken was

because of his complaints of exhaustion and breathlessness and

that the full plate x-ray was taken on 2 February 1961 because

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

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.

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, stated that

there was "no trace" of the medical records.

On 28 July 1970 DSS requested the Ministry of Defence to confirm

the applicant's service and his proximity to the detonation. 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 showing no period of sick leave, on or subsequent to the

detonation date, until 30 November 1958.

On 12 August 1970 the DSS requested the applicant's x-ray of

2 February 1961. The response, dated 18 September 1970, was as follows:

"A thorough search of our large film records for 1961 has been

made and no trace of a large film for can be

found."

On 5 October 1970 the DSS made another enquiry of the Ministry

of Defence requesting details as to the proximity of the applicant's

ship to any detonation and querying whether the applicant was likely

to have been in the open at the time of the blast, whether there were

any bed tickets in relation to the applicant's sick leave and whether

there were any relevant entries in the Medical Officer's Journal. The

x-rays taken on 70 mm film were also requested.

The response, dated 16 October and 17 November 1970, read as

follows:

"It is regretted that no bed tickets are held for

applicant>; there is no entry in the Civil Register nor is there

any trace in the Medical Officer's Journal... All available

medical documents were sent to you on 20th July 1970. ... The

records of operation Grapple are held by war historical branch

and an examination of these and the logbook for

ship> show that the ship was approximately 70 miles from the

explosion on 23 April 1958. ... The Naval plan contains the

following instruction:

'Precautions to be taken by ships in target areas - all

exposed personnel are to be completely covered, anti-flash

hats, gloves and goggles are to be worn, and long trousers

tucked into socks'."

On 1 January 1971 the applicant's pension claim was refused.

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 records including hospital records and x-rays.

The response, dated 17 March 1971, stated that "this enquiry has

already been thoroughly dealt with and to date we cannot provide

further service documents".

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:

"In summary, it is, in my opinion, virtually certain that the

correct diagnosis in this case is sarcoidosis and that the

disease had no relationship to 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. The opinion was expressed

that the applicant's exposure to beryllium compounds was unlikely in

the course of his work as a stoker.

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". The applicant initially

argued that an unedited version of his Statement of Case was not sent

to his then legal representatives but those representatives have now

confirmed that they are not sure whether this unedited version was

received by them at the time. The Government confirm that the dispatch

of the applicant's unedited Statement of Case to his representatives

(complete with a standard explanatory form) was noted in a Pensions

Tribunal Action Sheet as having taken place on 7 December 1971.

The applicant disputed the Statement of Case on the basis that

it lacked full medical records 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). Following further enquiries, the

Ministry of Defence confirmed that no further medical records existed,

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.

The DSS therefore issued the supplementary opinion that the

applicant's hospitalisation (in April 1958) predated the blast, that

the results of the x-rays were normal and that there was no evidence

that exposure to radiation could have caused the applicant's condition.

On 29 August 1972 the Pensions Tribunal rejected the applicant's

appeal confirming that:

"The Tribunal have carefully considered all the evidence. They

feel obliged to accept the opinion of the Medical Division of the

DSS and for the reasons stated therein regret that they must

disallow the appeal."

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

Pensions Tribunal 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.

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 Pensions Tribunal issued its decision in

1972 and to the further war pension claim made in 1982. The applicant

was again reminded of the Pensions Tribunal'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 Pensions Tribunal had sight of his

service records in considering the applicant's 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 Pensions

Tribunal.

C. Relevant background

1. Atmospheric Nuclear testing

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...".

Although it had been established as early as 1947 that such

exposure would inevitably have genetic effects on the relevant

individuals, this did not deter the Government from pursuing the

testing, and in 1955 Sir Anthony Eden, the then Prime Minister, is

quoted as referring to such a consequence as being "a pity but we

cannot help it".

For twelve years commencing in 1952 the United Kingdom Government

carried out a number of atmospheric nuclear weapon tests in Australia.

In 1958 tests were also carried out, with weapons having a greater

yield, off-shore and over the south-eastern peninsula of Christmas

Island. Approximately 20,000 servicemen participated in the Christmas

Island tests ("the test veterans").

2. Classified Documents

Certain documents have been classified and thus withheld from

public scrutiny for a 30 year period under the Public Records Acts and

this period has been recently extended for another 20 years for

"national security and personal sensitivity reasons". The Government

confirm that these documents do not contain any contemporaneously

recorded radiation levels, personal monitoring or personal medical

records. An attempt by way of motion in the House of Commons in January

1993, to urge the Government to, inter alia, appoint an independent

assessor to assess the national security reasons for the continued

retention of the documents, failed.

3. The Royal Commission into British Nuclear Testing in Australia

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-1980s) to the United Kingdom Public Records Office

under reference number DEFE16. The report of the Australian Royal

Commission published in 1985 noted, inter alia, the following:

(a) The United Kingdom was misleading in supplying information to the

Australian Government about the tests.

(b) 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.

(c) There were some serious departures from the contemporary

radiation protection policies and standards during the test programme.

(d) Exposure to radiation at certain dose levels is associated with

increased risk of cancer and genetic effects. While increased frequency

of genetic effect has not been demonstrated in any irradiated human

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

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

detonations and the deposition of fallout across Australia, it is

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

been caused in the Australian population.

The Royal Commission recommended that the United Kingdom

Government clean up certain test areas and 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.

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

British Nuclear Test Veterans Association ("BNTVA") and personnel from

the Atomic Weapons Establishment ("AWE")

(a) The 1988 NRPB report

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

(22,247 persons) with a control group (army personnel who passed

similar medical tests on entry into service but who did not participate

in the testing).

The NRPB report concluded that participation in the nuclear

weapon testing 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 DSS, which administers the war pensions

legislation, subsequently awarded war pensions to those presenting

these two conditions.

(b) The 1993 NRPB report

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.

(c) The BNTVA report

In 1992 the British Nuclear Test Veterans Association ("BNTVA"),

a group founded by the first applicant to campaign for recognition and

compensation for those exposed to the same or similar explosions,

conducted its own survey of its members and this report 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.

(d) The AWE report

In 1993 personnel with the AWE produced a report which described

and summarised the environmental monitoring undertaken at Christmas

Island during the series of test detonations in 1958. 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. The

report is stated not to necessarily represent the official views of the

AWE. The Government claim that the records of environmental radiation

monitoring are contained in this report and the applicant submits that

this report is merely descriptive and a summary of such information.

D. Relevant domestic law and practice

1. Civil action for compensation

It was accepted by the Secretary of State for Defence in the

House of Commons on 12 April 1994 that the Ministry of Defence "would

consider compensation for any British test veteran whose death or

illness had been caused by radiation from the atmospheric tests".

The right to compensation under common law is enforceable through

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

knowledge at the relevant time, his 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.

However, armed forces personnel, whose cause of action arose on

duty before 1987, are barred from suing the Crown from compensation by

section 10 of the Crown Proceedings Act 1947. (The repeal of section

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

actions.)

It is disputed between the parties whether that immunity from

suit is applicable in relation to veterans such as the applicant.

The Government claim that the case of Pearce v. The Secretary of

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

veterans such as the applicant to take a case against the

Secretary of State despite the immunity from prosecution set down

in section 10 of the 1947 Act.

The applicant disputes the availability of such a civil action,

submitting that the above-mentioned Pearce case arose out of very

particular and different facts.

To date no one has been able to successfully demonstrate in a

civil action for damages that an illness was, on the balance of

probability, caused by radiation from the nuclear tests.

2. War Pensions

Claims for an award of a pension are made to the Secretary of

State for Social Security ("the Secretary of State"), and The Naval,

Military and Air Forces Etc. (Disablement and Death) Service Pensions

Order 1983 ("the Order") provides for the payment of a benefit in

respect of disablement or death arising from service. The Secretary of

State 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.

The level of pensions awarded is governed by the Naval Military

and Air Forces, etc. (Disablement and Death) Service Pensions Order

1983 as amended.

The procedure for claiming a war pension commences with the

receipt of a claim by the DSS and the obtaining of the claimant's

service records (including service medical records) from the Ministry

of Defence. Once the factual questions as to, for example, dates of

service are established, the claim is passed to the DSS doctor who

forms a view as to whether the claimant is suffering from the

disability and whether the disability is attributable to service. In

order to assist in the decision, that doctor may obtain further medical

evidence and reports including civilian medical records. Once this

assessment is completed the Secretary of State will give the final

decision.

A claimant who is refused a war pension can appeal to the

Pensions Tribunal and this entitlement appeal is governed by the Appeal

Tribunals Acts 1943-1949. The Pensions Tribunal consists of a legally

qualified chairperson, a medical member and a lay member (a member of

the service in an entitlement claim). In order to assist the Pensions

Tribunal, the DSS provides the Pensions Tribunal with a Statement of

Case which is a typed version of the claimant's service records

including:

- service medical records;

- subsequent medical reports and medical reports obtained at the

request of the DSS doctor;

- a statement outlining the reasons of the Secretary of State for

the decision to refuse a pension; and

- possibly a statement of the DSS doctor of the evidence

considered, the conclusions reached and the reasons for the

conclusions.

The Statement of Case is sent to the claimant's representative

for comment and, in light of the claimant's representative's comments,

further enquiries may be made by the Ministry of Defence, specialist

consultants and the DSS doctor. The evidence thus gathered is

incorporated into a supplemental Statement of Case which is sent to the

claimant's representatives and to the Pensions Tribunal office for

hearing.

Rule 22(1) of the Pensions Appeal Tribunal (Scotland) Rules 1981

permits the Secretary of State to omit from the claimant's copy of the

Statement of Case medical evidence which, in the opinion of the

Secretary of State, "would be undesirable in the interests of the

appellant to disclose". However, where this rule applies, the

claimant's representative must be sent an unedited version of the

Statement of Case, which version is also before the members of the

Pensions Tribunal. If information is omitted under Rule 22(1), the

Pensions Tribunal when hearing the case may disclose the information

to the claimant or may, in his interests, hear the appeal without

disclosing this information.

A further appeal lies on a point of law to the Court of Session

in Scotland, either with the leave of the Pensions Tribunal or of the

Court of Session itself. Such an appeal could be made on the basis that

the Pensions Tribunal 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. Provision of records

Pursuant to Rule 6(1) of the Pensions Appeal Tribunal (Scotland)

Rules 1981, a claimant may apply to the Pensions Tribunal to give a

direction to a government department for disclosure of official

documents and information. It is also possible to apply under the

Administration of Justice (Scotland) Act 1972 for an order requiring

production of medical records in anticipation of litigation. In

addition, it is possible 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.

A Writ of Subpoena Duces Tecum can also be applied for, in the

context of an action for damages, which writ requires the production

to court of documents held by a third party.

4. Interceptions of communications and surveillance

The Interception of Communications Act 1985 and the Security

Services Act 1989 regulate and supervise such interceptions and

surveillance. Both statutes provide for complaints tribunals.

The jurisdiction of the Interception of Communications Tribunal

is limited to investigating whether there has been a relevant warrant

for interception and, where there is or has been, whether the reason

for and manner of issuing the warrant was in accordance with the 1985

Act. Where the Tribunal finds that there has been a contravention of

the provisions of the 1985 Act, it can, inter alia, order the quashing

of the warrant, the destruction of material intercepted and direct the

Secretary of State to pay compensation.

The Securities Services Tribunal can investigate whether a

complainant has been the subject of enquiries by the Security Services.

If so, it can investigate whether the Security Services had reasonable

grounds for instituting and continuing such enquiries and if not it

indicates to the complainant that no determination has been made in his

favour. In the event of a decision in favour of the complainant, the

Tribunal can order, inter alia, the cessation of surveillance, the

destruction of records and it can also order the Secretary of State to

pay compensation.

COMPLAINTS OF THE APPLICANTS

The applicants complain about certain matters arising out of

their allegedly deliberate exposure to atmospheric nuclear testing

conducted by the United Kingdom in 1958 over Christmas Island and its

surrounding waters. It is acknowledged by the applicants that their

exposure to the nuclear detonations in 1958 is outside the scope of the

Commission's examination since the United Kingdom had not, at that

stage, accepted the right of individual petition.

They complain that contemporaneous records were compiled of their

medical treatment and of radiation levels immediately after their

deliberate exposure to the detonations, and that they are being denied

access to those records held by the United Kingdom Government.

They contend that the failure, to warn of the effects of their

exposure to radiation or to release the aforementioned contemporaneous

records, has prevented early monitoring and the effective early

diagnosis and treatment of their problems. Together with prolonging and

exacerbating their physical suffering, it has caused mental stress to

themselves and their families. The applicants also complain that the

denial of access to such contemporaneous records effectively denies

them access to, and a fair hearing before, the Pensions Tribunal.

The applicants further contend that, in addition to the above

matters, the harassment and surveillance to which they have allegedly

been subjected, as well as amounting to inhuman and degrading

treatment, has infringed their right to respect for their private lives

and their correspondence, their freedom of expression and their freedom

of association. The applicants also complain that the assessment of

disability pensions is discriminatory.

The applicants invoke Articles 2, 3, 6 para. 1, 8, 10, 11, 12

(first applicant only), 13 and 14 of the Convention in relation to

these matters. In their observations submitted on 19 January 1995, the

applicants also invoke Articles 6 para. 1 (in relation to the editing

of their Statements of Case) and 14 (in relation to the level of

pensions awarded to ex-servicemen) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The applications were introduced on 20 April and 31 December 1993

and were registered on 12 May 1993 and 7 February 1994, respectively.

On 5 April 1994 the Commission decided to communicate the

applications to the respondent Government and to request them to submit

observations on the admissibility and merits of the applicants'

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

The joint observations of the Government were received on

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

purpose. The observations of the applicants were received on

19 January 1995 after one extension of the time-limit fixed for this

purpose. The Government subsequently submitted further observations,

prior to the Commission's further consideration of the matter, on

10 and 11 May 1995.

On 15 May 1995 the Commission joined the applications, requested

further information and observations from the parties on the

admissibility and merits of the applications and adjourned further

consideration of the applications.

The response of the Government was received on 20 July 1995 after

one extension of the time-limit fixed for this purpose. The applicants

submitted their response (including comments on the Government's

observations submitted in May 1995) on 26 July 1995 after one extension

of the time-limit fixed in this respect and further comments on the

Government's response of July 1995 on 26 August 1995.

THE LAW

The applicants have numerous complaints stemming from their

alleged deliberate exposure to atmospheric nuclear testing conducted

by the United Kingdom on Christmas Island in 1958. It is acknowledged

by the applicants that their exposure to the nuclear detonations in

1958 is outside the scope of the Commission's examination since the

United Kingdom had not, at that stage, accepted the right of individual

petition.

The applicants invoke Articles 2, 3, 6 para. 1, 8, 10, 11, 13

and 14 (Art. 2, 3, 6-1, 8, 10, 11, 13, 14) of the Convention and the

first applicant also invokes Article 12 (Art. 12) of the Convention.

A. Articles 2 and 3 (Art. 2, 3) of the Convention

The applicants complain under these Articles that their lives

have been endangered because of their deliberate exposure to nuclear

detonations and because of the Government's subsequent failure to warn

them of the possible consequences of their exposure, to advise in

relation to long-term health care or to disclose contemporaneous

records which meant that the applicants were not in a position to

obtain sufficient medical monitoring. The applicants also submit that

they have suffered inhuman and degrading treatment as a result of a

train of events begun by their deliberate exposure to the detonations

and continued by the ongoing failure of the Government to acknowledge

responsibility for this, to inform the applicants of the effects of

their exposure or to take any steps to mitigate the effects of their

exposure.

However, the Commission is not required to decide whether or not

these complaints disclose a violation of the Convention in view of the

six-month time limit set down by Article 26 (Art. 26) of the

Convention.

The Commission notes that both applicants have confirmed that

they became aware of the alleged connection between their illnesses and

their exposure to the nuclear detonations as early as 1982 and 1971,

respectively, and considers that the applicants were therefore in a

position from those dates to obtain advice on appropriate monitoring.

The Commission therefore considers that the time-limits for these

complaints began to run from those dates and further notes that the

present applications were not introduced until April and December 1993

respectively. Furthermore, an examination of the case does not disclose

the existence of any special circumstances which might have interrupted

or suspended the running of the time-limit. Therefore, the Commission

considers that this part of the application has been introduced out of

time and the Commission must declare these complaints inadmissible

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

Insofar as the applicants complain under Article 3

(Art. 3) of the Convention that the inhuman and degrading treatment

derives from non-disclosure of contemporaneous records and from

interceptions of communications, surveillance and harassment, the

Commission considers that these complaints fall to be dealt with under

Articles 6 and 8 (Art. 6, 8) of the Convention.

B. Articles 6 para. 1, 8 and 13 (Art. 6-1, 8, 13) of the Convention

and non-disclosure of contemporaneous records

The applicants complain under Articles 6 para. 1 and 8

(Art. 6-1, 8) of the Convention that the failure of the United Kingdom

Government to disclose contemporaneous records effectively deprived

them of their right of access to, and of a fair hearing before, the

Pensions Tribunal for the purposes of obtaining a pension based on

their radiation related illnesses and constituted a failure to respect

their private lives. The applicants also complain under Article 13

(Art. 13) of the Convention that they have no effective domestic remedy

in this regard.

1. Article 25 (Art. 25) of the Convention

The Government deny that the applicants can claim to be victims

of a violation of the Convention, submitting that the applicants have

already received all their service and civilian medical records and

that such records were before the Pensions Tribunal when their cases

were considered. However, the Commission notes that none of the

original records disclosed to the applicants to date contain the

contemporaneous medical or radiation records to which the applicants

seek access and therefore finds that the applicants can, pursuant to

Article 25 (Art. 25) of the Convention, claim to be victims of a

violation of Articles 6 para. 1, 8 and 13 (Art. 6-1, 8, 13) of the

Convention as regards the alleged non-disclosure of those records.

2. Article 26 (Art. 26) and exhaustion of domestic remedies

The Government submit that the applicants have not exhausted a

number of available domestic remedies as required by Article 26

(Art. 26) of the Convention.

In the first place, the Government argue that the applicants did

not formally request the appropriate governmental department to supply

them with their service medical records. The Government also point to

the fact that had the applicants been refused such records, they could

have compelled the Government to produce those medical records by

applying to the President of the Pensions Tribunal who could have

directed the Government to produce them. The Government further submit

that, in order to obtain any such medical records, the applicants could

have obtained an order for recovery of documents, in anticipation of

litigation, under section 1 of the Administration of Justice (Scotland)

Act 1972 or an order for Specification of Documents in the context of

a civil action in the courts. The applicants argue, inter alia, that

the persistent pattern to date, in terms of their own cases and the

cases of others (in respect of whom the applicants have submitted

statements to the Commission), is one of non-disclosure despite

requests and investigations. They further submit that the Pensions

Tribunal and the DSS made a number of requests for their full service

medical records to the Ministry of Defence, which requests did not

yield any contemporaneous medical records.

The Commission recalls that, according to the constant case-law

of the Convention organs, the applicants are required to exhaust only

domestic remedies that are likely to be effective and adequate (see,

for example, No. 13156/87, Dec. 1.7.92, D.R. 73 p. 5).

The Commission notes that it does not appear to be disputed that

the DSS made a number of general and specific requests, to the Ministry

of Defence, on behalf of both applicants and in the context of their

pension applications, for their service medical records. One of the

enquiries of the DSS (11 February 1985) followed a claim by the first

applicant that his service medical records, as disclosed to him, had

been doctored. Another such enquiry (4 March 1971) was made pursuant

to representations made on the second applicant's behalf.

The Commission does not consider that further requests or orders,

made either by the applicants, by the President of the Pensions

Tribunal (assuming the President would have agreed to make such a

request) or by a court could have resulted in the production of records

which the Ministry of Defence had already confirmed on a number of

occasions could not be traced. Therefore the Commission considers that

these further domestic remedies suggested by the Government would not,

in the circumstances of the present cases, be effective or adequate as

submitted by the Government.

Secondly, the Government also submit that the applicants have not

brought a civil action for damages against the Government which action

is now possible following the removal of the immunity from suit (in

relation to claims from ex-servicemen such as the applicants) by the

decision in the case of Pearce v. The Secretary of State for Defence

and Ministry of Defence [1988] 2 WLR 145.

The availability of this remedy is disputed by the applicants who

submit that the immunity from suit still exists and that such an action

would not in any event provide an effective remedy. In this respect the

applicants submit, inter alia, that there is a significant difference

between their cases and Mr. Pearce's case as the applicants would be

alleging negligence on the part of the armed forces rather than against

private individuals. The applicants also contend that Mr. Pearce's case

presented an extremely particular set of the facts and that the

applicants would not, in any event, be in a position to discharge the

required onus of proof without, inter alia, the undisclosed

contemporaneous records. They point out, in relation to this latter

submission, that no one has ever succeeded in any such action (not even

Mr. Pearce) because of the lack of records available.

The Commission notes that the Pearce case did not involve an

allegation that the armed forces had acted negligently. In addition,

even assuming that this remedy is available to the applicants, the

Commission considers that such a remedy would not be effective. The

medical documentation which was disclosed and which was before the

Pensions Tribunal was found insufficient to establish a causal

connection between the detonations and the applicants' ongoing

illnesses. As noted above, the Ministry of Defence indicated to the DSS

on a number of occasions that no additional contemporaneous medical

records could be traced. Since, as submitted by the Government, the

onus of proof is lower before the Pensions Tribunal, it is unlikely

that the applicants would have succeeded in discharging the higher onus

of proof applicable in a civil case using the same medical records as

were before the Pensions Tribunal.

The Commission therefore finds that a civil action for damages

against the armed forces cannot be considered, in the present

applications, to be an effective and adequate domestic remedy.

Thirdly, the Government argue that the applicants could have

appealed the Pensions Tribunal's decisions to the Court of Session in

Scotland on a point of law. The applicants submit that on the facts

available to the Pensions Tribunal the decisions against them were

unappealable. Their complaints do not relate to the quality of the

decisions but rather the lack of records made available to the Pensions

Tribunal. The Commission is of the view that a further appeal to the

Court of Session in Scotland, even on the grounds of "acting upon an

incorrect basis of fact", would not have provided the applicants with

an effective domestic remedy since the applicants would not have been

able to produce any further information upon which to base an appeal.

The Commission therefore concludes that these complaints of the

applicants should not be declared inadmissible on grounds of the

requirement to exhaust domestic remedies set out in Article 26

(Art. 26) of the Convention.

3. Article 26 (Art. 26) of the Convention and six months

The Government submit that the second applicant's application is

out of time in that the Secretary of State turned down his last pension

appeal on 25 August 1992 and that his present application was not

introduced within six months of that date.

The Commission recalls that according to the constant case-law

of the Convention organs, although the six-month time limit set down

by Article 26 (Art. 26) of the Convention runs from the date of the

final decision or, in the absence of a domestic remedy, from the date

of the act of which the applicant complains, this rule applies only to

cases where the complaint is about a specific decision or occurrence

and not where the complaint is about a situation of some duration (see,

for example, No. 11660/85, Dec. 19.1.89, D.R. 59 p. 85).

The Commission considers that a continuing failure to supply the

applicants with certain records can constitute a continuing problem for

the applicants in terms of establishing a causal link between the

detonations and their illnesses and therefore a continuing problem of

access to court in respect of their pension entitlements. In this

respect, the Commission notes that it would be open to the applicants,

on receipt of further relevant contemporaneous records in relation to

their medical treatment or radiation levels, to re-apply to the DSS for

a re-assessment of their disability pensions. The alleged non-

disclosure also constitutes a continuing difficulty for the applicants

in piecing together a significant part of their medical and personal

history.

The Commission therefore considers that the second applicant's

complaints under Articles 6 para. 1 and 8 (Art. 6-1, 8) of the

Convention cannot be declared inadmissible as outside of the six-month

time limit set down in Article 26 (Art. 26) of the Convention.

Furthermore, the Commission finds nothing in the observations of

the parties to indicate that the submissions made by the Government at

paragraphs B. 1, 2 and 3 above would affect the admissibility of the

applicants' complaints as regards non-disclosure of the contemporaneous

radiation records.

4. The complaints in relation to non-disclosure of records under

Articles 6, 8 and 13 (Art. 6, 8, 13) of the Convention.

Articles 6 para. 1, 8 and 13 (Art. 6-1, 8, 13) of the Convention,

insofar as relevant, read as follows:

Article 6 (Art. 6)

"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."

Article 8 (Art. 8)

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

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, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

Article 13 (Art. 13)

"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."

(a) As regards the complaint under Article 6 para. 1

(Art. 6-1) of the Convention, the Commission notes that the Government

do not dispute that the determinations of the level of the applicants'

disability pensions could constitute determinations of civil rights

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

In the first place, the Government point out, inter alia, that

the applicants were not test subjects but rather participated in

support activities in relation to the tests. The Government also

dispute the applicants' account of their illnesses submitting that

there is no record of any such illnesses and that the applicants

themselves failed to refer to any of their allegedly detonation related

illnesses on discharge from the army. The Government also point out

that, if the applicants were as ill as they describe, the sequelae of

any such illnesses would have been referred to in their later medical

records and that the Pensions Tribunal had all of the applicants'

medical records before it when considering their applications.

The Government also point out that the applicants have received

their entire service and civilian medical records held by the military

authorities and that classified documents do not contain records of the

radiation levels recorded after the relevant detonations or of any

monitoring or treatment of the applicants after those detonations.

Furthermore, records of environmental radiation monitoring at Christmas

Island are not currently classified and are included in the Report

published in 1993 by personnel of the Atomic Weapons Authority ("AWE").

The Government further submit that, in any event, the statistical

surveys and analyses completed in 1985 and in 1993 by the National

Radiological Protection Board ("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. The Government do not raise this expressly as a basis for

arguing that these complaints are manifestly ill-founded but the

Commission considers it appropriate to refer to these submissions of

the Government in this context.

The applicants maintain their accounts of their experiences on

Christmas Island and allege that the Government are not disclosing the

medical records of their treatment after the detonations nor

contemporaneous records of radiation levels after those detonations

(which information the applicants allege has been, inter alia,

classified on grounds of national security). In particular, the first

applicant has produced a photograph of himself in 1958 on Christmas

Island wearing a cast on his leg. The applicant claims that the cast

was applied due to paralysis after a detonation whereas his discharge

notes refer to his breaking his leg in May 1958 and to eight weeks

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

disclosed to him to date contains any record of this treatment.

The applicants challenge in some detail the NRPB and AWE reports.

The applicants 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.

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

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

radiation level records.

The applicants challenge the AWE report on the basis that it is

merely descriptive and a summary and that the report expressly states

that it does not necessarily represent the official views of the AWE.

According to the applicants it does not, contrary to the Government's

submission, contain the original radiation recordings and, furthermore,

the applicants' own expert advises that its conclusions defy the basic

statistical references.

Finally, the applicants refer in detail to the criticisms by the

Australian Commission of the United Kingdom Government's conduct of the

testing in Australia (which took place at the same time as the testing

in Christmas Island) and to the consequent agreement by the United

Kingdom Government to pay compensation to the Australian Government.

(b) As regards the complaint under Article 8 (Art. 8) of the

Convention in relation to non-disclosure of documents, the Government

argue that the Gaskin case (Eur. Court H.R., Gaskin judgment of 7 July

1989, Series A no. 160) 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).

The applicants submit, inter alia, that Mr. Gaskin sought

medical information in order to establish his medical condition to

allow him to take an action in tort against a county council for

negligence and that the release of the records in the Gaskin case was

complicated by a confidentiality problem which does not exist in this

case (at least not in relation to the detonation related medical

records). The applicants dispute that current medical examinations

could establish the contemporaneous facts in relation to, and immediate

effects of, their exposure to radiation which took place approximately

35 years ago. It is necessary, according to the applicants, to

establish these facts before medical conclusions can now be drawn as

to their current medical condition. Finally, the applicants refer to

their young ages at the time of the first detonation.

(c) As regards Article 13 (Art. 13) of the Convention 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. 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 Commission finds, in light of the parties' submissions, that

this part of the application raises complex and serious issues under

Articles 6, 8 and 13 (Art. 6, 8, 13) of the Convention which require

determination on the merits. It follows that these complaints of the

applicants cannot be dismissed as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring them inadmissible has been established.

C. Article 6 para. 1 (Art. 6-1) of the Convention : Editing of the

Statements of Case

The applicants initially complained that their representatives

were not furnished with unedited copies of their Statements of Case as

required by Rule 22 of the Pensions Appeal Tribunal (Scotland) Rules

1981. The Government contested this complaint pointing to their

original records which indicated the precise dates (5 May 1987 and 7

December 1971) when the unedited versions of the Statements of Case

were sent to the applicants' then representatives.

However, in light of the applicants' more recent submissions, as

to the finding by those previous representatives of the first

applicant's Statement of Case on an old file and as to those

representatives' uncertainty whether they received the second

applicant's Statement of Case or not, the Commission does not find the

applicants' complaint substantiated and therefore this complaint is

manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of

the Convention.

The applicants continue to maintain that the Statements of Case

were improperly edited by the Secretary of State and this point is

disputed by the Government. However, the Commission is not required to

decide whether or not this latter complaint of the applicants discloses

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

of the requirement to exhaust domestic remedies contained in Article

26 (Art. 26) of the Convention. Since it has not been shown that the

applicants' representatives did not receive the unedited Statements of

Case during the proceedings before the Pensions Tribunal and since no

question was raised before that Tribunal about the manner in which the

Statements of Case were edited, this complaint must be declared

inadmissible on grounds of non-exhaustion of domestic remedies pursuant

to Article 27 para. 3 (Art. 27-3) of the Convention.

D. Interception of communications, surveillance and harassment

The applicants complain under Articles 8, 10 and 11

(Art. 8, 10, 11) of the Convention in relation to interception of

communications (by correspondence and by telephone) and of surveillance

as a result of their activities with the BNTVA. The first applicant

also complains about harassment under these Articles.The Commission

recalls that the lex specialis as regards alleged interference with

communication of information or ideas by correspondence is Article 8

(Art. 8) of the Convention and it is further recalled that

communication by telephone is included in that concept of

"correspondence" (No. 8231/78, Dec. 12.10.83, D.R. 49 p. 5 and Eur.

Court H.R., A v. France judgment of 23 November 1993, Series A no. 277-

B). Therefore, the Commission finds that these complaints fall to be

considered under Article 8 (Art. 8) of the Convention.

The Government argue, inter alia, that since a complaint has not

been made to the Interception of Communications Tribunal under section

7 of the Interception of Communications Act 1985, any complaint in

respect of alleged interceptions of communications is, pursuant to

Article 26 (Art. 26) of the Convention, inadmissible on grounds of non-

exhaustion. In this respect, the applicants submit that an

administrative practice of, inter alia, interception of

telecommunications and surveillance of ex-servicemen and members of the

BNTVA exists. The applicants further argue that, in any event, the

Tribunal provided for under the 1985 Act is insufficient and

ineffective to protect the rights guaranteed by Article 8 (Art. 8) of

the Convention, particularly in light of the Government's submission

that the alleged interference would not have been authorised by warrant

under the 1985 Act.

The Commission recalls that it has previously found that these

Tribunals together with the relevant Commissioners constitute

sufficient safeguards for the purposes of Article 8 (Art. 8) of the

Convention (No. 21482/93, Dec. 27.6.94, D.R. 78-A p. 119), and despite

the applicants' submissions to the contrary, finds no reason in the

present case to depart from that conclusion. The Commission therefore

considers that the failure of the applicant to complain to any of those

Tribunals constitutes a failure to exhaust domestic remedies and

therefore finds the complaints of the applicants, about interception

of communications and about surveillance, inadmissible pursuant to

Article 27 para. 3 (Art. 27-3) of the Convention.

As regards the first applicant's complaint of harassment, the

Commission notes that the incidents in respect of which the first

applicant complains occurred in or about 1985. In view of the date of

introduction of the first applicant's application, the Commission finds

that this complaint was introduced outside of the time-limit set down

by Article 26 (Art. 26) of the Convention and therefore it must be

declared inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention.

F. Article 12 (Art. 12) of the Convention

The first applicant complains under Article 12 (Art. 12) of the

Convention that he is sterile because of his exposure to the nuclear

detonations and therefore he has been unable to found a family. The

Commission considers that the acts complained of are the detonations

and the six-month time-limit, set down by Article 26 (Art. 26) of the

Convention, began to run on this complaint from the date of the first

applicant becoming aware of the alleged connection between his

condition and the detonations to which he was exposed, which was 1982.

The Commission notes that no event of relevance to this complaint

occurred either after his exposure or since the applicant's awareness

of that alleged connection.

Since the first applicant introduced his application in 1993, the

Commission must, pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention, declare this complaint inadmissible as having being

introduced outside the time-limit provided for in Article 26 (Art. 26)

of the Convention.

G. Article 14 (Art. 14) of the Convention

The applicants complain, in their observations, that the level

of disability pensions differs according to a claimant's rank on

leaving service and argue that this difference in treatment is a

violation of Article 14 (Art. 14) of the Convention. The Commission

notes that Article 14 of the Convention has no independent existence

and for the purposes of this complaint considers it is raised with

Article 1 of Protocol 1 (P1-1).

As regards the first applicant the Commission notes that this

complaint was introduced to the Commission in the joint observations

received on 19 January 1995 and that the Naval Military and Air Forces

etc. (Disablement and Death) Service Pensions Order 1983 came into

force in 1983 at which time the applicant was already in receipt of a

pension. The Commission also recalls that the second applicant has not

been awarded a pension. Therefore the Commission concludes that the

first applicant's complaint in this respect has been introduced outside

of the six month time-limit set down by Article 26 (Art. 26) of the

Convention and must be declared inadmissible pursuant to Article 27

para. 3 (Art. 27-3) of the Convention. The second applicant cannot

claim to be a victim of a violation of the Convention since he is not

in receipt of a pension and as such his complaint must be declared

manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of

the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicants' complaints under Articles 6, 8 and 13 (Art. 6, 8, 13)

in relation to non-disclosure of records;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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McGINLEY AND EGAN v. THE UNITED KINGDOM

McGINLEY AND EGAN v. THE UNITED KINGDOM

LEXI