PARTIALLY DISSENTING OPINION OF MR. C.L. ROZAKIS

joined by MR S. TRECHSEL

      I regret that I am unable to share the opinion of the majority

of the Commission with respect to the violation of Article 6 para. 1

of the Convention and the proceedings against the Inspectors and the

Secretary of State.

      I agree with the Commission when it considers that the

publication of the Inspectors' report had an adverse effect on the

applicants' reputation and that any civil suit - the right to a good

reputation being a civil one - in defamation brought against the

Inspectors and/or the Secretary of State would have been effectively

met with the defence of absolute or qualified privilege.  But I am in

no position to follow their further arguments, that in the virtual

absence of civil proceedings, the applicants still had the possibility

to defend themselves in a court of law by way of judicial review.

      First of all, I would like to contest the argument of the

Commission as to the legitimacy and proportionality of the privilege

enjoyed by the Inspectors' report.  I, of course, agree that the

freedom of the Government to report must be seen in the context of the

general public interest, namely the interest of society at large to be

informed of the activities of large commercial enterprises, and the

interests of those specifically dealing with such enterprises to be

duly protected in their transactions by the honesty and transparency

of those dealings.  But are these interests safeguarded by reports

which are not objectively determined by the findings of a court of law,

which are prepared by "outside Inspectors", and which are of uncertain

accuracy?  How can one answer the question in the positive, when the

Secretary of State himself, in commenting on the Inspectors' report,

accepted that

      "...  We can all take our view about [the allegations in the

      report] and I think that the balance of probability is extremely

      strong that they are accurate, but there is no proof of this ...

      I am not required to say that every fact and opinion in the

      report is true ...  I myself ... believe that the events are

      correct, but we have no proof ..."?

      In such circumstances one wonders whether the proper balance has

been struck by the Commission here, because the interests of the public

were not served by a thorough and objective investigation by a court

of law into the truthfulness of the report's allegations, and because

the uncontested report gravely affected the reputation of the

applicants, without at the same time ensuring the real interests of

society in being adequately and properly informed.

      I come now to the means of defence by which the applicants could

protect their reputation.  The Commission considers that judicial

review was the right course to be followed by the applicants.  It

advances the argument that, in view of the allegations made by the

applicants about the Inspectors in their press communiqué of

7 March 1990 (para. 40 of the report), it is suprising that the

applicants did not initiate judicial review proceedings against them.

Yet judicial review applies only on very limited grounds: the grounds

of illegality (the decision-maker must understand correctly the law

that regulates his power and must give effect to it), irrationality (a

decision which is so outrageous in its defiance of logic or of accepted

moral standards that no sensible person who had applied his mind to the

question to be arrived at could have arrived at it), or procedural

impropriety (a failure to act with procedural fairness towards the

person who will be affected by the decision).  It is characteristic

that in English common law, the application of the term "irrationality"

- which seems the most relevant ground for judicial review in the

circumstances of this case - has been further restricted by the

"Wednesbury Principles", which require that the court of review should,

in principle, leave the assessment of the facts to the public body to

whom Parliament has entrusted the decision-making power, and to

intervene only in circumstances "where it is obvious that the public

body, consciously or unconsciously are acting perversely" (see

paras. 55-56 above).

      I wonder how then, under such a restrictive interpretation of the

grounds justifying judicial review, the complaints of the applicants

could have had any prospect of success.  I am not referring, of course,

to those complaints which were put forward in the press communiqué, and

which were presented in an exaggerated manner in order widely to

influence public opinion.  I am referring to those complaints which may

have reasonably been submitted to a court of law for an assessment and

interpretation of those facts which the Inspectors had before them.

      For the above reasons, I find that the applicants did not have

effective access to court for proceedings against the Inspectors and

the Secretary of State, and that, therefore, in my opinion,

Article 6 para. 1 of the Convention has been breached.