CONCURRING OPINION OF JUDGE S CAFLISCH AND RESS

We agree with the present judgment. We agree in particular, regarding the scope of Article 6 § 1 of the Convention, that the restriction contained in section 10 of the Crown Proceedings Act 1947 barred the applicant from suing the Crown and that it derived from the applicable principles governing the substantive right of action in domestic law (see paragraph 124 of the judgment).

Having reached the above conclusion, the Court has found it unnecessary to dwell on the alternative argument submitted by the Government (see paragraph 113 of the judgment) to the effect that Article 6 § 1 was not applicable on account of the Court ' s judgments in Pellegrin v. France ([GC], no. 28541/95, § 66, ECHR 1999-VIII) and R. v. Belgium (no. 33919/96, 27 February 2001), which exclude from the scope of that provision cases pertaining to the relationship between the State and State officials engaged in the exercise of public functions. As the Court pointed out in Pellegrin :

“ ... the only disputes excluded from the scope of Article 6 § 1 of the Convention are those which are raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting as the depositary of public authority responsible for protecting the general interests of the State or other public authorities. A manifest example of such activities is provided by the armed forces and the police . ” (§ 66; emphasis added)

The present case squarely fits into the above category, which is why we find that the applicant ' s complaint under Article 6 § 1 of the Convention must also fail on the basis of the alternative argument put forward by the Government but not examined by the Court.

DISSENTING OPINION OF JUDGE LOU CAIDES JOINED BY JUDGES ROZAKIS, ZUPANČIČ , STRÁŽNICKÁ, CASADEVALL, THOMASSEN, MARUSTE AND TRAJA

I am unable to agree with the majority that the applicant had no civil “right” recognised under domestic law which could attract the application of Article 6 § 1 of the Convention and that as a consequence there has been no violation of that provision. I believe that the applicant in this case had a civil right in respect of the tort of negligence, subject to a procedural limitation. I therefore find that Article 6 § 1 of the Convention is applicable and that, in so far as the applicant was denied access to a court, there has been a violation of the provisions of that Article. I shall set out in detail the reasons for my approach.

The basic issue in this case is whether the limitations imposed by section 10 of the Crown Proceedings Act 1947 amount to procedural or other non-substantive restrictions on bringing an action before the British courts in cases such as that of the applicant, or whether they limit the extent of the substantive cause of action with the result that the applicant cannot rely on Article 6 of the Convention because he is not entitled to any civil right . In deciding this issue we have to take into account the domestic law and at the same time bear in mind the autonomous Convention concept of a civil right . In other words, the question is whether the applicant had a cause of action in respect of which he was denied access to a court because of procedural restrictions or whether he did not have a cause of action at all and consequently no question of access to a c ourt arises in any event under Article 6 of the Convention.

Until 1947 no cause of action in tort lay against the State (“the Crown”). Political and social developments appear to have led to a radical change in the situation. Section 2 of the 1947 Act introduced a provision by which the Crown would be subject to liability in tort. However, section 2 was subject to section 10, which provided for different treatment for the armed forces. If members of the armed forces were injured in the course of their duties, the Crown could not be sued in tort if the Secretary of State certified that the death or injury could be treated as attributable to service for the purposes of entitlement to a war pension , the idea being to substitute a no-fault pension system for an action in tort. While the placement of sections 2 and 10 i n Part I of the 1947 Act, entitled “Substantive law”, is relevant, it is also pertinent to observe that a cause of action in tort against the Crown could be pursued by a serviceman against the Crown if the Secr etary of State did not issue a section 10 cer tificate . It must be underlined that s ection 10 of the 1947 Act was repealed in 1987, allowing armed forces personnel to sue the Crown in tort without any restrictions, but the repeal concerned events post-dating the entry into force of the 1987 Act and clearly does not apply to the applicant ' s case

Prior to the decision on admissibility in the present case, the High Court (in Matthews v. Ministry of Defence ) found section 10 of the 1947 Act to be incompatible with Article 6 on the ground that it amounted to a procedural bar that was disproportionate (see paragraphs 84-86 of the present judgment). Since the admissibility stage, the Court of Appeal and the House of Lords have overturned the High Court ' s ruling, finding that section 10 delimited the substantive cause of action so that Article 6 was inapplicable ( see paragraphs 87-95 of the judgment)

Consequently, I believe that in deciding whether the fact that the applicant was unable to bring an action against the State for negligence, a possibility afforded to every private individual under the same law, is a procedural or substantive issue, it is useful to bear in mind the approach of the High Court and the House of Lords on this very issue in Matthews .

According to the High Court, the relevant provisions of the 1947 Act did not affect the applicant ' s right of action but simply prevented him from suing the State for damages on account of a breach of that right. In other words there was a right of action but the remedy was unavailable. In this connection, it took into account the fact that the applicant was prevented from suing under the provisions in question as a consequence of a decision by the Secretary of State to issue a certificate entitling him to a no-fault pension. The High Court stressed the following on this point:

(a) Even working on the assumption that the certificate required by section 10 of the Act as a condition for preventing an action in tort against the State was generally issued as a matter of policy in every case in which the Secretary of State was satisfied that there was a connection between the serviceman ' s injuries and his service in the armed forces, that did not mean that the Secretary of State responsible for issuing such a certificate could not depart from this policy if he wished to.

(b) If the legislature had intended to exclude claims by members of the armed forces, such as the applicant, from the scope of the State ' s liability in tort and not simply make such liability dependent on certain procedural conditions, it could simply have specified that the provisions regarding tortious liability were not to apply to claims by such persons.

The approach of the House of Lords was that the legislation complained of by the applicant provided for the first time for the State ' s liability in tort. The legislation in question defined the extent of the cause of action in respect of such acts. Section 10, which prevented the applicant from suing in the circumstances of his case, set a limit on the cause of action, leaving cases such as his outside the scope of such action.

Regarding the fact that non-liability for tort in cases such as that of the applicant depended on the issuing of a certificate by the Secretary of State leading to the payment of a pension, a fact on which the High Court relied

in finding that the limitation of access to a court in such cases was a procedural bar and not a substantive one, the House of Lords took the view that according to

“ ... the realiti es of the situation ... the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive State immunity ” . (see par agraph 92 of the judgment)

I take it that the House of Lords meant that certification by the Secretary of State in practice was more of a formality rather than a procedure involving the exercise of a substantial discretion.

Having considered carefully the legal position before 1947, the 1947 Act and the case-law , I am inclined to support the conclusion that we are not dealing here with the exclusion of the right of access to a court on account of the delimitation of the scope of the particular civil tort, but with restrictions on access to a court in respect of a civil right on account of certain conditions of a procedural nature. More specifically, I believe that the tort of negligence for which the applicant seeks judicial redress has a well-established legal basis in the domestic law of the respondent State. Until 1947 it was not actionable against the State. One could argue that until then the State did not have any legal liability because according to the British legal system prevailing at the time , “the King could do no wrong”. I do not find this traditional legal fiction sufficiently convincing to have neutralised in terms of the Convention the civil wrong of negligence as far as claims against the State were concerned. It did, however, prevent any action against the State. It should be recalled that whether there is a civil right in any country is not decided exclusively by reference to the domestic law. The courts may examine whether there is a sufficient legal basis for a civil right in the State in question regardless of the domestic conditions or limitations.

But even assuming that the State had no liability at all for any tort because “the King could do no wrong”, the f act remains that after the 1947 Act the State became liable for torts committed by its public servants. The substantive provisions of this Act do not exclude cases such as that of the applicant from the scope of the State ' s tortious liability. And here I must say that I agree with the statement in the judgment of the High Court that if the 1947 Act was intended to exclude members of the armed forces from the reforms introduced by sections 1 and 2, then one would have expected a clear provision to the effect that these reforms were not to apply to claims by such persons. In such cases the question whether any particular claim fell within this category or not would have had to have be en decided by the courts on the basis of the relevant facts (see Powell and Rayner v. the United Kingdom (judgment of 21 February 1990, Series A no. 172) concerning the substantive limitation under section 76(1) of the Civil Aviation Act 1982).

It is correct that section 10 of the 1947 Act provides that the Crown is not subject to liability in tort in respect of acts causing death or personal injury to members of the armed forces if certain conditions are satisfied, one of them being that the Secretary of State certifies that the suffering of the relevant injury has been or will be treated as attributable to service for the purposes of entitlement to a pension. The question then arises whether this provision is part of the definition of the relevant civil right, or whether it simply regulates an already existing civil liability through procedural restrictions. I favour the second alternative and in this respect I again subscribe to the approach of the High Court, to which I have already referred.

Providing for a condition such as certification by the Secretary of State, rather than defining a series of exceptions and leaving the question of their existence in any particular case to be decided by the courts, lends support to the view that the relevant restriction on the right of access to a court is procedural in nature . In this connection, I believe that it is also pertinent to point out that certification by the Secretary of State also amounts to intervention by the executive , in fact a member of the government, in the determination of the question whether an individual is qualified to bring an action in the courts for negligence . Given the political status of the Secretary of State, his intervention points to a procedural rather than a substantive limitation on the right to bring an action. This is because holders of political posts are responsible for the formulation of policies and their application and this involves the exercise of substantial discretion. And, as was rightly pointed out by the High Court, the fact that the certificate was generally issued as a matter of policy in every case in which the Secretary of State was satisfied that there was a connection between the serviceman ' s injuries and his service in the armed forces did not mean that the Secretary of State could not depart from this policy if he wished to. Such a change of policy is illustrated by what was discovered, after the hearing in this case before our Court, in connection with a case similar to that of the applicant (see paragraph 72 of the judgment; reference is made to this point below).

The Secretary of State may issue the certificate in question or he may not. If he is not satisfied that the relevant situation requires such a certificate or, to use the words of the House of Lords, if he finds that it is not appropriate to issue the certificate, people in the applicant ' s position can sue for the civil wrong of negligence, which already exists. The Secretary of State may not have wide discretion compared to that of a foreign government in deciding whether or not to waive State immunity, but he certainly does have the possibility or the power to decide each case in one way or another. If he issues the certificate there can be no judicial action. If he does not , people in the applicant ' s position can bring an action on a legal basis that already exists . Indeed, it is important to stress that in such cases the existing legal basis is the general right to sue the State in tort under section 2 of the Act. No new legal basis is provided for in the absence of the relevant certification and therefore no new legal basis is required. This supports the conclusion that the restrictions regarding members of the armed forces do not fall within the definition or delimitation of the general liability of the Crown in tort as introduced by the substantive provisions of the 1947 Act. Furthermore, taking into account the wording of the Act, the distinction made by the High Court between the existence of a right and a remedy is, I believe, correct. The legal basis of the right is there. The remedy is conditional.

The certificate by the Secretary of State may in general be issued as a matter of course. Nevertheless, it may not be issued and the assumed nature of certification does not strengthen the respondent Government ' s case any further. Admittedly, the judgment in Fogarty v. the United Kingdom ( [GC], no. 37112/97, ECHR 2001-XI) regarding immunities differs from the present case. But even a claim for immunity is in practice generally a formal claim before the courts. Embassies issue certificates claiming diplomatic or State immunities even for non-payment of their diplomats ' debts, and such certificates are issued as a matter of course.

What is also important in this respect is the fact that after the hearing before the Court in the present case it was discovered that according to legal advice given by the Treasury Solicitor to the Ministry of Defence in 1953 concerning another test participant in the same position as the applicant, section 10 of the Crown Proceedings Act 1947 was not applicable and its provisions could not therefore protect the Crown or the Minister from liability. As a consequence of that, the Secretary of State has decided that he will no longer “take a section 10(1) point” in any civil action brought by the applicant. So it appears that in the present case there were two contradictory approaches regarding the exclusion of Crown liability by virtue of section 10 of the 1947 Act. This is an additional strong argument i n support of the position that s ection 10 certificates were not granted as a matter of course. The Secretary of State may exercise his or her discretion in one way or another through an assessment of the situation on the basis of the same facts. This is strongly indicative of a procedural limitation on the right of access to a court in respect of the claim. It certainly seems to undermine the view expressed by the House of Lords and the Government that the exercise of discretion in issuing section 10 certificates is not substantial. On the contrary, it appears from these new facts that the Secretary of State in issuing a certificate is making an assessment or appraisal of the situation that goes beyond the mere finding of fact or the verification of the fulfilment of certain legal conditions. It has been demonstrated that the same situation may be assessed in two different, contradictory ways. The political status of the Secretary of State and the nature of the conditions that he has to consider when deciding whether or not to issue a certificate (“ ... if [the] suffering ... has been or will be treated as attributable to service ...”) do play a role in such an assessment.

But, being concerned with human rights, we must not lose sight of the demands of the rule of law which formed a basis for the acceptance of a right of access to a court. The rule of law requires that individuals should be allowed to have their civil rights examined by independent judicial institutions. This applies a fortiori to claims against the State. In such cases we must adopt a more liberal approach or interpretation of the legal situation so as to allow room for the right of access to a court rather than lean towards the extinction of, or the creation of absolute bars to, such a right – if, of course, there is a reasonable opportunity to do so. And in this case I believe that there is such an opportunity.

The r ai son d ' ê tre of the restrictions on the relevant right of the members of the armed forces in the present case has ceased to exist since 1987. This is a factor to be taken into consideration, both in support of my position that the restrictions in question did not limit that right and in support of the conclusion that , as such restrictions were procedural, they could not be considered proportionate to the aim pursued. On this subject I again fully subscribe to the reasoning of the High Court (see paragraph 86 of our judgment).

Finally, I must state that I do not agree with the argument made by the Government ( see paragraph 113 of the judgment ) to the effect that Article 6 § 1 is inapplicable on account of the Court ' s judgments in Pellegrin v. France ( [GC], no. 2854 1 /95, § 66 , ECHR 1999-VIII ) and R. v. Belgium ( n o. 33919/96 , 27 February 2001). My disagreement is based on precisely the same reasons as those set out by the Court of Appeal in Matthews (see paragraph 88 of our judgment). Furthermore , I note that the Ministry of Defence did not raise this argument before the House of Lords in that case.

In view of my finding regarding the violation of Article 6 of the Convention, I do not think that it is necessary to deal with the complaint concerning Article 1 of Protocol No. 1.