Resolution CM/ ResDH (2009)20 [1]

Execution of the judgment of the European Court of Human Rights

Roche against the United Kingdom

(Application No. 32555/96, judgment of 19 October 2005, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the failure to fulfil the positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information which would allow him to assess any risk to which he had been exposed during his participation in mustard and nerve gas tests (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with the United Kingdom ’ s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures, preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2009)20

Information about the measures to comply with the judgment in the case of

Roche against the United Kingdom

Introductory case summary

This case concerns insufficient access to information regarding the mustard and nerve gas tests in which the applicant participated at the Chemical and Biological Defence Establishment at Porton Down in 1963. In 1962 and 1963, 3000 service personnel participated in nerve gas tests and 6000 in mustard gas tests, with some participating in both. Those tests were conducted under the auspices of the British Armed Forces.

The European Court considered that the United Kingdom had not fulfilled its positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information which would allow him to assess any risk to which he had been exposed during his participation in the tests (violation of Article 8).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

8 000 euros

43 771.28 euros

51 771.28 euros

Paid on 28/11/2005

b) Individual measures

At the time of the delivery of the judgment by the European Court , a hearing was pending before the Pensions Appeal Tribunal (PAT) concerning the existence of a causal link between the tests and the applicant ’ s medical conditions in the context of the applicant ’ s claim for a service pension. Previous decisions had held that the applicant had suffered no long-term respiratory effect from the tests. In a judgment of 23/07/2007, the PAT found that the applicant ’ s exposure to mustard gas during the tests was a cause of his chronic obstructive pulmonary disorder and concluded that the disorder was attributable to his service. On 11/01/2008 the Service Personnel and Veterans Agency assessed the applicant ’ s level of disability and increased the amount of his service pension.

II. General measures

i ) The Data Protection Act 1998 (DPA 1998 ) entered into force on 1 March 2000. Under this Act, individuals have a right to receive personal data that a public authority holds about them.

If an applicant is not satisfied with the content or timeliness of the response he/she receives, he/she could seek an Internal Review. If he/she is still not satisfied, he/she may appeal to the Information Commissioner, a UK independent supervisory authority reporting directly to Parliament. Decisions of the Information Commissioner may be appealed to the Information Tribunal.

A separate National Security Appeals Panel of the Tribunal hears appeals against exemptions from disclosure of information for reasons of national security or of information supplied by or relating to bodies dealing with security matters. A judicial review of the Panel ’ s decision by the High Court is possible.

ii) The Freedom of Information Act 2000 ( FOIA 2000) came fully into force on 1 January 2005. It creates a general right of access to any information held by a public authority. The appeals procedure is similar to that under the DPA 1998.

iii) The Human Rights Act 1998 (HRA 1998) entered into force on 2 October 2000. An Article 8 request falling outside the scope of the DPA 1998 and FOIA 2000 would still be within the ambit of section 6 of the HRA 1998, which requires public authorities (in this case, the Ministry of Defence (MoD)) to act in a way which is compatible with the Convention. An applicant who believed that the MoD had not discharged its obligations under Article 8 could seek judicial review of their action in the Administrative Court .

The Porton Down Volunteers ’ Helpline was set up in February 1998, with the objective of helping former volunteers or their representatives to gain easy access to information relating to their participation in tests at Porton Down. The Helpline has a toll-free telephone number and is answered by MoD ’ s Defence Science and Technology Laboratory ( Dstl ). It has been included in all information on the Porton Down Volunteers provided by the MoD Press Office and by the Wiltshire Police.

3) Additional measures adopted

Aside from the legislative measures summarised above, other measures have been adopted aimed at, in particular:

- clarifying the re sponsibilities of persons handling requests for access to information ;

- simplifying the procedure for individuals to make a request for information about their actual or possible exposure to hazard; and

- improving the public availability of information about the tests at Porton Down, by publishing a historical survey of the Service Volunteer Programme [2] .

III. Conclusions of the respondent state

The government consider that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent new, similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies

[2] Details of these additional measures are found in the annotated agenda notes for the 1028 th meeting (DH)

(3-5 June 2008) of the Committee of Ministers (Section 6.1), and are available on the internet at:

http://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/OJ/DH(2008)1028&Language=lanEnglish&Ver=section6.1public&Site=CM&BackColorInternet=9999 C C&BackColorIntranet=FFBB55&BackColorLogged=FFAC75 .