PARTLY DISSENTING OPINION OF JUDGE LORENZEN

I entirely share what is said in the part ly dissenting opinion of Judge Nordén, which I have joined. I would just like to add that, taking into account the careful and detailed assessment by the Norwegian Supreme Court of the difficult facts dating back many years, as well as of the connected legal issues, the principle of subsidiarity – which is one of the most important principles determining the scope of the Court ’ s jurisdiction – should also have led the Court to respect that assessment and find no violation of Article 8 of the Convention.

PARTLY DISSENTING OPINION OF JUDGE NORDÉN, JOINED BY JUDGE LORENZEN

The majority of the Court has found a violation of Article 8 of the Convention on account of a failure by the respondent State to ensure that the applicants received essential information regarding decompression tables.

I agree with the majority that it is most appropriate to deal with the matter from the angle of the State ’ s positive obligations under Article 8, the core problem being the long-term effects on the applicants ’ health (see paragraph 234 of the judgment). I regret, however, that I am unable to share the majority ’ s view that there has been a violation of Article 8 in this respect. My reasons may be outlined as follows.

It is common ground that a right of access to information enabling individuals to assess risks to their life or health may follow from Article 8 of the Convention based on the assumption that access to such information might have an impact on their private lives. However, when cases are decided by the application of broadly worded general principles to a set of concrete circumstances with little use of general guidelines to serve as building blocks, a careful scrutiny of the circumstances of the given case is called for in order to assess the relevance of previous judgments.

According to my perception, the issue of access to information in the judgments referred to by the majority in paragraph 235 arose in different contexts. In my opinion none of those judgments support the finding of a violation of Article 8 in the present case.

In Roche v. the United Kingdom ([GC], no. 32555/96, ECHR 2005 ‑ X), the applicant had been denied access to information relating to his participation during military service in the testing of nerve gas and mustard gas on military personnel. The anxiety and stress caused by the uncertainty as to what he had been exposed to had such an impact on his present private life that Article 8 was applicable. A violation of the procedural aspect of that provision was found as the State had failed to provide an effective and accessible procedure enabling him to have access to all relevant and appropriate information which would allow him to assess any risk to which he had been exposed (ibid., §§ 161 to 162). The issues at stake in McGinley and Egan v. the United Kingdom (9 June 1998, Reports of Judgments and Decisions 1998 ‑ III), concerning participation in nuclear tests, were essentially the same. In that case a violation was not found, however, as an effective procedure was accessible to the applicants.

The present applicants have not been denied access to any information relating to their career as divers. When the issue of possible delayed injuries arose, the authorities actively contributed to the investigation, foremost by appointing the Lossius Commission and financing research (see paragraph 15). In this respect, the present case is clearly distinguishable both from Roche and from McGinley and Egan .

In Öneryıldız v. Turkey ([GC], no. 48939/99, § 71, ECHR 2004 ‑ XII) , Budayeva and Others v. Russia (nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, ECHR 2008), and Kolyadenko and Others v. Russia (nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, §§ 157-161, 28 February 2012), the issue of access to information arose in a different context. It follows from the case-law of the Court that when the authorities know or ought to have known of a real and immediate risk to life, they have a positive obligation under Article 2 of the Convention to take such preventive measures as are necessary and sufficient to protect those individuals whose lives are endangered (see, among other authorities, Öneryıldız , cited above, § 101). In a number of judgments the term “real and immediate risk” is used when considering the scope of the State ’ s obligations under Article 2 in different circumstances (see, among other authorities, Osman v. United Kingdom, 28 October 1998, § 116 in fine ; Mastromatteo v. Italy [GC], no. 37703/97, § 68, ECHR 2002-VIII; and Makaratzis v. Greece [GC], no. 50385/99, § 71, ECHR 2004 ‑ XI).

In the context of dangerous activities the scope of positive obligations under Article 2 largely overlaps with those under Article 8 (see Kolyadenko and Others , § 212, and Budayeva and Others, § 133, both cited above).

As set out in paragraph 220 of the judgment with reference to the general principles stated in Öneryıldız and further elaborated in Budayeva and Others and Kolyadenko and Others , among the preventive measures available to the State particular emphasis should be placed on the public ’ s right to information. The circumstances in those cases were similar in that they concerned disastrous events; a methane gas explosion on a waste collection site, a mudslide and a flood, respectively. As a common denominator the authorities had remained passive and failed to do anything to protect exposed individuals, not even to inform them about the imminent risk to their lives. In all those cases it was evident from the assessments made of the authorities ’ passivity that they had been aware of the inherent risks and that they were much to blame.

The assessment may be more complicated in the context of long-term effects of a continuing situation, as in the present case, than when considering a single hazardous event. In this connection, case-law concerning environmental hazards such as the judgment in Guerra and Others v. Italy (19 February 1998, Reports 1998 ‑ I ), as discussed in paragraphs 235 to 236, may provide more guidance. In my opinion, the present case is, however, distinguishable from Guerra. In brief, that case concerned the operation of a chemical factory classified by the authorities as “high risk” according to the criteria set out in the “Seveso” directive. In the course of its production cycle, the factory had released large amounts of flammable gas and other toxic substances, including arsenic trioxide. The emissions had often been channelled towards the applicants ’ village nearby. Moreover, in 1976 150 people had been hospitalised on account of acute arsenic poisoning caused by an explosion in the factory (ibid., § 57). The direct effect of the toxic emissions on the applicants ’ right to respect for their private and family life meant that Article 8 was applicable and a violation was found. The Court in particular emphasised that “the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident in the factory” (ibid., § 60).

In Guerra, the account of the circumstances given in the judgment leaves no doubt as to the authorities ’ knowledge of the adverse health effects and dangers to the local population mentioned above. Moreover, the authorities had failed to comply with a statutory obligation to provide the local inhabitants with such information (ibid., §§ 25-27). The domestic legality of the authorities ’ acts or omissions should be taken into account in assessing whether the respondent State has complied with its positive obligation (see paragraph 220 of the judgment).

Bearing in mind the overall assessment by the unanimous Court in paragraph 232 and its adherence to the assessments made by the national courts in paragraph 224, I fail to see that the circumstances in the present case bear a resemblance to any previous case in which a violation of the Convention has been found. The differences are striking. The framework of this opinion does not allow any detailed assessment, but I would briefly mention the following significant points.

In my opinion, the extent to which the use of rapid decompression tables did in fact contribute to the applicants ’ subsequent medical problems is far from clear. These are complex and difficult scientific questions that this Court is not particularly well suited to deal with (see the English summary of the Lossius report, p. 134, section 3.4.5, and the quotation of section 7.4 of the report in paragraph 83 of the judgment). In any case I do not find the causality issue to be decisive here. I emphasise that an unrealistic burden should not be imposed on the authorities and that their conduct should not be evaluated with the wisdom of hindsight.

As a starting point, I subscribe to the assessments made by the majority in paragraph 239 regarding the prevailing view at the relevant time as to the possible long-term effects of deep-sea diving.

The statistics mentioned in paragraph 92 indicate that the frequency of decompression sickness was decreasing during the years prior to the adoption of standardised tables in 1990 and that it had been a relatively rare occurrence. As a result of under-reporting, the authorities probably did not, however, have the complete picture (see paragraph 224 (iii)).

There was an uneasy feeling among many people connected with diving that perhaps the current procedures could be causing long-term damage to sensitive tissue like the central nervous system. In my opinion, the authorities ’ approach in general was appropriate. They showed engagement in order to obtain enhanced knowledge about possible long-term effects (see paragraphs 85 to 88). The conferences in Stavanger in 1983 and in Godøysund in 1993 were manifestations of this engagement. The process seems to have been transparent. It is not asserted that the divers or their organisations were denied access to significant information.

The decompression tables used by the diving companies could be said to provide information of significance for the divers ’ health (see paragraph 236). The information contained in the tables was, however, rather incomprehensible. Even experts in diving medicine had difficulties in achieving a clear understanding of them. Access to the tables therefore would probably have been of limited use for the divers (see in this respect paragraph 184). The question arises, however, whether the authorities should have done more to ensure that the applicants received essential information regarding decompression tables for the purpose of enlightening them about possible risks.

In retrospect, one could wish that the authorities had pursued the objective of achieving standardised decompression tables with more energy than they appear to have done, at least in the relevant periods. It is conceivable that decompression sickness in that case might have been eliminated sooner, thus improving the safety of the divers and reducing the risk of such long-term injuries as those at issue in the present case. Whilst I do not rule out the possibility that access to information regarding decompression tables for divers at an earlier stage could have contributed to this development, I find the question somewhat hypothetical. In the light of the undisputed information submitted to the Court showing that Norway is so far the only country to have adopted standardised tables, one should not be too critical.

In sum, I fail to see how the fact of omitting to provide the applicants with information regarding the decompression tables sooner than the Norwegian authorities actually did can justify a finding of a violation of Article 8 of the Convention or, still less, of Article 2. When applying the general principles relating to the right of access to information established in the case-law to the concrete circumstances of the present case, to assign liability would entail a significant expansion of a State ’ s positive obligation under Article 8 in this respect.

Since my conclusion is that there has been no violation of the Convention by the respondent State, I also find that the applicants ’ economic claims should be rejected entirely.

[1] Mr Vilnes performed diving between 1976 and 1978 and in 1983 and Mr Muledal between 1978 and 1989.

[2] Ibidem.