DISSENTING OPINION OF JUDGE pEKKANEN

1. I agree with the majority that Article 8 was not violated with regard to the pension proceedings. However, in addition to their interest in establishing pension entitlement, the applicants had a general interest in obtaining access to information relating to their alleged exposure to harmful levels of radiation. This interest has not been sufficiently taken into account by the majority.

2. A summary of the records of environmental radiation monitoring on Christmas Island was published in 1993, some thirty-five years after the tests (see paragraph 13 of the judgment). The records themselves, from which the summary had been compiled, were not provided to the applicants until the Government annexed them to their memorial to the Court (see paragraph 14 of the judgment). Thus, for the greater part of their lives, the applicants did not have access to this information.

3. It is true that under Rule 6 of the Tribunal Rules, during the period of six weeks following the communication to him of the Statement of Case prepared by the DSS, each applicant had the opportunity to request disclosure of the documents in question (see paragraph 59 of the judgment). However, although I am satisfied that the Rule 6 procedure provided an adequate guarantee of the applicants’ right to a fair hearing before the PAT, I do not consider that this procedure was sufficient to fulfil the State’s positive obligation under Article 8, since the Rule 6 procedure was contingent on the applicants’ claims for pensions whereas, as the majority have found, in addition to and independent of their interest in establishing pension entitlement, the applicants had a general and continuing interest in obtaining access to information relating to the extent, if any, to which they had been exposed to harmful levels of radiation (see paragraph 99 of the judgment).

4. In its judgment in the case of L.C.B. v. the United Kingdom (9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1404, § 40), the Court accepted that it was perhaps arguable that, had there been reason to believe that the applicant (the daughter of a nuclear test veteran) had been in danger of contracting a life-threatening disease owing to her father’s presence on Christmas Island, the State authorities would have been under a duty to have made this known to her parents. Whilst I agree with the majority that, in the absence of any clear evidence of the existence of relevant documentation, such a duty does not arise on the facts of the present case, which is therefore distinguishable from the Guerra and Others v. Italy (see paragraph 99 of the judgment), I consider that the State should have made available to the applicants an effective and accessible procedure allowing them to seek any relevant and appropriate information (see paragraph 101 of the judgment). However, it has not been demonstrated that, outside the six-week period provided for by Rule 6, the applicants had at their disposal any other procedure which would have enabled them to obtain disclosure of documents not yet in the public domain.

5. In these circumstances, I consider that the available procedures were not adequate to satisfy the State’s positive obligation to provide a means whereby the applicants could seek and obtain access to this information.

There has, therefore, been a violation of Article 8 of the Convention in this respect.

Notes by the Registrar

[1] . The case is numbered 10/1997/794/995–996. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The third number indicates the case’s position on the list of cases referred to the Court since its creation and the last two numbers indicate its position on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.

1. Note by the Registrar : as a derogation from the usual practice (Rule 27 § 5 of Rules of Court A), the French text was not available until 18 June 1998, but it too is authentic.

[5] . Note of 29 November 1955, Atomic Weapons Trials and Training, Joint Organisation (Appendix B to the applicants’ memorial and Annex 11 to the Government’s memorial). Report of the Commission, § 19.

[6] . Committee report of 20 May 1953, Atomic Weapon Trials (Appendix A to the applicants’ memorial and Annex 11 to the Government’s memorial). Report of the Commission, § 17.

[7] . Annex 8 to the Government’s memorial. See § 1.1 of that note.

[8] . Annexes 9 and 10 to the Government’s memorial.

[9] . Personnel Safety Plan Note of 5 April 1958, § 3, j (see Annex 9 to the Government’s memorial). See the report of the Commission, §§ 15, 37 and 49, and the judgment at p. 1339, § 10.

[10] . See the Note of March 1958 referred to above, § 10. This was already substantially less than what had been arranged in November 1957 for the Maralinga tests, when it was decided that all personnel assigned to those tests would be subject to medical examinations before leaving the United Kingdom and after their return: see on that subject the document of 19 November 1957, UK Personnel for Duty at Maralinga (Annex 11 to the Government’s memorial and Appendix C to the applicants’ memorial).

[11] . See the report of the Commission, §§ 37 and 39. Judgment, pp. 1341–42, §§ 16 and 18.

[12] . See the report of the Commission, §§ 49 and 50. Judgment, pp. 1345–46, §§ 35 and 37.

[13] . See the report of the Commission, § 37. Judgment, p. 1341, § 16.

[14] . See the report of the Commission, § 49. Judgment, p. 1345, § 35.

[15] . See Annexes 5, 6 and 7 to the Government’s memorial.

[16] . In Mr McGinley’s records, there is nothing for the period from 30 December 1957 to 15 September 1958; in Mr Egan’s records, there is nothing for the period from 8 March 1958 to 30 November 1958.

[17] . That is what seems to be indicated in the minutes of a meeting which took place on 15 July 1958 (in other words approximately three months after the explosion of 28 April 1958) when precautions for radiological safety on Christmas Island were discussed (see Appendix I to the applicants’ memorial and Annex 11 to the Government’s memorial). At that meeting, two senior air force officers, with no dissent from their colleagues, one from the navy, the other from the army, present at the same meeting and with some support from the Task Force Commander (who was also from the air force) who had chaired the meeting, opposed holding blood examinations on personnel assigned to the tests; one of them even observed that if a member of the armed forces who had been given a clean bill of health before being posted subsequently developed leukaemia, it might be difficult to refute the allegation that that had been due to the radiation to which he had been exposed (see §§ 2 and 5 of the minutes). It was decided that only personnel assigned to the “forward area” would be subject to such examinations and the Air Ministry would decide whether the same provisions would apply to personnel subsequently posted to the island (see § 6, second sub-paragraph of the minutes).

[18] . A tendency to deny or to minimise the effects of the explosions is to be found in particular in a telex of 31 July 1956 where there is a request for the words “shows an increase” in a particular document to be replaced by the words “has not shown an increase” (see Appendix K to the applicants’ memorial and Annex 11 to the Government’s memorial), and in a letter of 22 December 1955 which contains a recommendation not to give the Australian Government certain samples for a number of days, “so that some of the short-lived key isotopes have decayed a good deal” (see Appendix F to the applicants’ memorial and Annex 11 to the Government’s memorial, paragraph 19 of the report of the Commission).

[19] . See , mutatis mutandis , the Airey v. Ireland judgment of 9 October 1979, Series A no. 32, pp. 12–14, § 24.

[20] . See, mutatis mutandis , the Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 20, § 49, and the Guerra and Others v. Italy judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 228, § 60.

[21] . See pp. 1360–61, §§ 89, 90, and p. 1364, §§ 102 and 103 of the judgment.

[22] . See pp. 1363–64, §§ 98–101 of the judgment.