joint DISSENTING OPINION OF JUDGEs DE MEYER, VALTICOS AND MORENILLA

( Translation )

From the outset it was known that not only were nuclear weapons capable of causing the immediate deaths of large numbers of people but also that they could, in the long term, have serious effects on the physical integrity and health of those exposed to them, whether directly or indirectly, from near or from afar. After what happened at Hiroshima and Nagasaki in August 1945, no one could have any doubts as to this.

The British Government, which since 1952 had also been carrying out tests on weapons of this type and were in particular interested in “the effects of nuclear explosions on personnel and equipment” [5] , “with and without various types of protection” [6] , were aware of those effects. On the day before the tests in issue in the present case, they stated, in a note entitled “Radiological Safety Regulations, Christmas Island” of March 1958 [7] that “the danger is insidious because the effects are not felt immediately and the damage may only become apparent after several years”.

They accordingly had the duty to assume their responsibilities towards the people present in the test areas when the explosions took place. They should have taken steps to ensure that those people were able to apprise themselves of their situation and to have available all the information necessary to enable them effectively to assert their rights.

The authorities of the respondent State could not confine themselves to taking certain precautions during the actual tests, such as those that were laid down for personnel on Christmas Island in the note of March 1958 referred to above and in a number of other documents between April and September 1958 [8] , which included in particular an obligation imposed on all soldiers present in the area to turn their backs to point zero during the explosions and to keep their eyes closed and covered [9] .

They should have established the state of health of both of the participants before and after the tests and monitored developments, at least for as long as the soldiers remained in service. They should also have informed them of any relevant information thereby obtained.

That is what the authorities did to some extent by holding, in the case of the Christmas Island tests, medical examinations for the personnel required to work in the “controlled zones” or with radioactive materials [10] .

But that did not occur in the case of the two applicants, one of whom served in the army from October 1956 to November 1959 [11] , the other in the navy from October 1956 to February 1961 [12] , who at the time of the 1958 tests on Christmas Island were under orders, the one somewhere at the other end of the island during the explosions of 28 April, 22 August and 2, 11 and 23 September [13] and the other on the deck of a ship off the coast of the island during the explosion on 28 April [14] .

Their medical records, as produced by the Government [15] contain hardly any information as to their physical condition before and after the tests, or as to the possible consequences of their presence near to the places where the tests took place [16] .

The Government implied that that information did not exist. That would mean that the authorities had been grossly negligent in not gathering it [17] .

It is also possible that such information exists or did exist and that it has been deemed necessary to keep it secret or to destroy it [18] . That would be even more serious.

Whatever the case, the information should have existed and ought to have been communicated to the men concerned.

As that did not happen, the respondent Government made it impossible for the applicants to assert effectively any rights they had before the relevant courts [19] and deprived them of personal information which they had a “vital interest” in receiving [20] .

They cannot be criticised for not having used the procedure laid down in Rule 6 of the Pensions Appeal Tribunals Rules [21] . The fact that there was such a procedure could not, in the instant case, suffice to satisfy the positive obligations that were incumbent on the State, under both Articles 6 and 8 of the Convention [22] . The applicants had the right to be informed of all the consequences that their presence in the test area could have for them, including those it could have on their pensions. They had the right to know what might happen to them, without having to ask.

There has, in our opinion, therefore been a violation of the rights recognised by Articles 6 and 8 of the Convention.