Egan v. The United Kingdom (case no.10/1997/794/995-996) 9 June 1998:
Access to records relating to applicants’ participation in nuclear tests.
Facts: The applicants had participated in nuclear tests conducted by the United Kingdom at Christmas Island. They later requested contemporaneous records of those tests in the context of their applications for service disability pensions. Their request was refused.
Complaint: the applicants claimed the refusal of their request of the records violated article 6 of the Convention and their right to private life guaranteed by article 8.
Holding: the ECHR did not find a violation of article 6 and article 8
Reasoning: article 8 imposed a positive obligation on
Members States which engaged in hazardous activities causing hidden adverse
consequences on health, namely to take an effective and accessible procedure
to enable exposed individuals to seek relevant and appropriate information.
The Court ruled that the U.K. fulfilled its duty by providing Rule 6
United Kingdom – access to records relating to applicants’ participation in Christmas Island nuclear tests (Pensions Appeals Tribunals (Scotland) Rules 1981)
I. SCOPE OF CASE
Complaint under Article 3 based on same facts (lack of access to documents) as, and falls more appropriately within scope of, complaints under Article 6 § 1, 8 and 13.
II. GOVERNMENT’S PRELIMINARY OBJECTION
III. ARTICLE 6 § 1 OF CONVENTION
IV. ARTICLE 8 OF THE CONVENTION
I. THE CIRCUMSTANCES OF THE CASE
1. The line-up procedure
2. Radiation level records
12. Documents containing the original contemporaneous recordings of environmental radiation levels in the vicinity of Christmas Island following the tests were stored at the Atomic Weapons Research Establishment ("AWRE") at Aldermaston, England. Although these documents were not available for inspection by members of the public, the Government claimed that since the information contained in them would not have given rise to security concerns, they could have been produced if required for the purposes of proceedings before the Pensions Appeal Tribunal ("PAT": see paragraph 59 below).
13. In 1993 a summary of "all the surviving data" gathered by the environmental monitoring programme was published as Technical Note 16/93, "Environmental Monitoring at Christmas Island 1957-1958". This, inter alia, described the environmental monitoring programme set up for the tests and included sample measurements of radiation in the air, sea water and deposited on the ground. The sources of the information upon which the Technical Note was based were also listed.
14. The Government annexed to their memorial to the Court in the present case a number of documents, not hitherto in the public domain, including a report by the AWRE of the measurements made of radioactive fall-out on various Pacific islands, including Christmas Island, during April-May 1958 (Grapple Y) and of the concurrent programme of fish sampling; a report by Major JT McLean describing measurements of fallout on various Pacific Islands between 1 July and 30 November 1958 (Grapple Z); a report of residual radiation measurements following the Grapple Y explosion on Christmas Island; a summary statement of environment radiation measurements following the Grapple Y explosion, by AWRE, dated May 1958; and interim reports on radiological measurements following the Grapple Y and Z detonations.
I. SCOPE OF THE CASE BEFORE THE COURT
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
A. Arguments of those appearing before the Court
78. They alleged that the State had engaged in a process of cover-up, misinformation and obstruction in order to avoid liability for any subsequent health problems caused by the Christmas Island tests. Thus, at the time of the tests the military authorities had decided not to monitor the servicemen’s individual radiation dose levels, and over the ensuing years measures had been taken to obstruct claims for pensions brought by test veterans such as the applicants. These measures took the form inter alia of denying access to the documents they needed to establish that their health problems were service-related.
79. In their memorial, the applicants identified these documents as being
the portions of their military medical records detailing treatment for
radiation-related complaints, such as skin blistering, nausea and diarrhoea
sustained after the line-up procedure (see paragraphs 17 and 47 above), and
measurements of radiation levels in the vicinity of Christmas Island
following the nuclear tests.
B. The Court’s assessment
86. The Court considers that, if it were the case that the respondent State had, without good cause, prevented the applicants from gaining access to, or falsely denied the existence of, documents in its possession which would have assisted them in establishing before the PAT that they had been exposed to dangerous levels of radiation, this would have been to deny them a fair hearing in violation of Article 6 § 1.
87. According to the applicants, the documents in question were the portions of their military medical records showing that they had suffered from and been treated for radiation-related conditions shortly after the test detonations, and other records, such as those of the health physics controller, from which it would have been possible to assess the degree of their personal exposure to radiation (see paragraph 79 above).
88. With regard to the former category, the Court, like the Commission,
is not satisfied that, even if it could be concluded from the applicants’
submissions that medical records were created in respect of treatments
administered to them for health complaints sustained as a result of the test
detonations, these records were still in existence at the date of the United
Kingdom’s Articles 25 and 46 Declarations (see paragraph 63 above).
89. Moreover, even if could be established that, at the times of the
applicants’ appeals, there was in the possession of the State material
relevant to the issues before the PAT, the Court observes that, under Rule 6
of the Tribunal Rules, it was open to the applicants to apply to the
President of the PAT for a direction requesting the disclosure by the State
of any relevant document (see paragraph 59 above). The Government have
asserted that in invoking this procedure it would not have been necessary
for the applicants to identify any specific document required, but only to
request in general terms, for example, documentary evidence relating to the
MOD’s claims that each of them had been exposed to zero radiation.
Furthermore, it is the Government’s submission that, had the President of
the PAT made a Rule 6 direction for disclosure of radiation levels records,
there would have been no security reason for withholding such records under
Rule 6(2)(b) (see paragraph 59 above).
90. The Court considers that, in these circumstances, where a procedure
was provided for the disclosure of documents which the applicants failed to
utilise, it cannot be said that the State prevented the applicants from
gaining access to, or falsely denied the existence of, any relevant
evidence, or that the applicants were thereby denied effective access to or
a fair hearing before the PAT.
91. In view of the above conclusion, it is not necessary for the Court to determine whether or not the Government’s preliminary objection should be upheld (see paragraph 75 above).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
A. Arguments of those appearing before the Court
94. The applicants contended that they were entitled to access to the documents which would have enabled them to ascertain whether or not they were exposed to dangerous levels of radiation on Christmas Island, so that they could assess the possible consequences of the tests for their health.
95. The Commission considered that records of radiation levels on
Christmas Island related to the applicants’ private lives, and that the
latter had a strong and legitimate interest in obtaining access to them,
since these were the only source of primary data from which the applicants
could begin to construct the nature and physical impact of their
participation in the test programme. For the reasons referred to in relation
to Article 6 § 1 of the Convention, the Commission considered it probable
that, had the applicants, during the course of the pension proceedings, made
use of the Rule 6 procedure to request the production of these documents,
the request would have been refused on grounds of national security.
B. The Court’s assessment
97. The Court considers that, in view of the above, the issue of access
to information which could either have allayed the applicants’ fears in this
respect, or enabled them to assess the danger to which they had been
exposed, was sufficiently closely linked to their private and family lives
within the meaning of Article 8 as to raise an issue under that provision.
99. In this respect the Court observes that, given the fact that exposure to high levels of radiation is known to have hidden, but serious and long-lasting, effects on health, it is not unnatural that the applicants’ uncertainty as to whether or not they had been put at risk in this way caused them substantial anxiety and distress. The Court recalls that the applicants submitted, in connection with Article 6 § 1, that the radiation levels records would not have been of use to them in the proceedings before the PAT (see paragraph 79 above). Nonetheless, the Court considers that, since these documents contained information which might have assisted the applicants in assessing radiation levels in the areas in which they were stationed during the tests, and might indeed have served to reassure them in this respect, they had an interest under Article 8 in obtaining access to them. As it has observed above (paragraph 88), the existence of any other relevant document has not been substantiated and is thus no more than a matter of speculation. For this reason, the present case is distinguishable from that of Guerra and Others (cited in paragraph 69 above), where it was not disputed that the inhabitants of Manfredonia were at risk from the factory in question and that the State authorities had in their possession information which would have enabled the inhabitants to assess this risk and take steps to avert it.
100. The Court recalls that the Government have asserted that there was no pressing national security reason for retaining information relating to radiation levels on Christmas Island following the tests (see paragraph 81 above).
101. In these circumstances, given the applicants’ interest in obtaining access to the material in question and the apparent absence of any countervailing public interest in retaining it, the Court considers that a positive obligation under Article 8 arose. Where a Government engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information.
102. As regards compliance with the above positive obligation, the Court
recalls its findings, in relation to the complaint under Article 6 § 1, that
Rule 6 of the Tribunal Rules provided a procedure which would have enabled
the applicants to have requested documents relating to the MOD’s assertion
that they had not been dangerously exposed to radiation and that there was
no evidence before it to suggest that this procedure would not have been
effective in securing disclosure of the documents sought (see paragraph 89
above). However, neither of the applicants chose to avail themselves of this
procedure or, according to the evidence presented to the Court, to request
from the competent authorities at any other time the production of the
documents in question.
103. The Court considers that, in providing the above Rule 6 procedure, the State has fulfilled its positive obligation under Article 8 in relation to these applicants. It follows that there has been no violation of this provision.
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