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McGinley and 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 procedure.

 

United Kingdom – access to records relating to applicants’ participation in Christmas Island nuclear tests (Pensions Appeals Tribunals (Scotland) Rules 1981)

I. SCOPE OF CASE
Complaints under Article 2 and 3 of the Convention concerning lack of monitoring during nuclear tests of applicants’ exposure to radiation not raised before Commission and based on events in 1958 before United Kingdom’s Article 25 and 46 Declarations - complaint under Article 8 concerning alleged harassment of first applicant declared inadmissible by Commission since introduced outside six-month limit – Court has no jurisdiction to consider these complaints.

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
Government’s argument on non-exhaustion of domestic remedies closely linked to substance of applicants’ complaints under Articles 6 § 1 and 8.
Conclusion: objection joined to merits (unanimously).

III. ARTICLE 6 § 1 OF CONVENTION
A. Applicability
Not disputed.

B. Compliance
Not established that respondent State had in its possession documents relevant to questions at issue in pension appeals – in any case, open to applicants to apply for disclosure of relevant documents under Rule 6 of Pension Appeals Tribunals (Scotland) Rules 1981 – since this procedure provided, which applicants failed to use, cannot be said they were denied fair hearing or effective access to the Pensions Appeal Tribunal.
Conclusion: no violation (six votes to three); not necessary to rule on preliminary objection (unanimously).

IV. ARTICLE 8 OF THE CONVENTION
A. Applicability
Applicants in doubt as to whether exposed to dangerous levels of radiation – issue of access to information on this question linked to private and family lives – Article 8 applicable.

B. Compliance
Where State engages in hazardous activities which might have hidden adverse consequences on the health of those involved, Article 8 requires that an effective and accessible procedure be established enabling such persons to seek relevant and appropriate information – State has fulfilled this positive obligation in present case by providing Rule 6 procedure.
Conclusion: no violation (five votes to four); not necessary to rule on preliminary objection (unanimously).

I. THE CIRCUMSTANCES OF THE CASE
A. The Christmas Island nuclear tests
9. Between 1952 and 1967 the United Kingdom carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen. Among these tests were the "Grapple Y" and "Grapple Z" series of six detonations at Christmas Island in the Pacific Ocean (November 1957-September 1958), of weapons many times more powerful than those discharged at Hiroshima and Nagasaki.

1. The line-up procedure
10. During the Christmas Island tests, service personnel were ordered to line-up in the open and to face away from the explosions with their eyes closed and covered until 20 seconds after the blast.
The applicants alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast.

2. Radiation level records
11. No record exists of the degree of exposure to radiation, if any, of servicemen such as the applicants, since film badges (which turn black if exposed to radiation) were issued only to the approximately 1,000 predominantly non-service personnel on Christmas Island who were working in identified, controlled and active areas. According to the applicants (see paragraph 78 below), this decision was taken to avoid future liability for radiation-caused harm. According to the Government, however, experience of earlier nuclear test explosions in Maralinga, Australia, where film badges had been issued to all personnel, had shown that personnel with duties such as the applicants’ were not exposed to measurable levels of radiation.

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
67. In their written and oral pleadings to the Court the applicants raised the following complaints. First, they contended that their Article 6 § 1 rights to a fair hearing and Article 8 rights to respect for their private and family lives had been violated by the withholding of documents which would have assisted them in ascertaining whether there was any link between their health problems and exposure to radiation. Secondly, they claimed under Article 3 of the Convention that, as a result of the unfair pension procedure, each of them had suffered severe mental stress. Thirdly, they alleged that the Government’s failure to monitor their exposure to radiation while they were stationed on Christmas Island gave rise to violations of Articles 2 and 3. Fourth, they complained under Article 13 about the lack of any effective remedy for their Convention complaints. Finally, Mr McGinley alleged to have been harassed by State authorities in violation of Article 8.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
76. The applicants complained that, as a result of the non-disclosure of portions of their military medical records and records of radiation levels on Christmas Island following the nuclear tests, they had been denied effective access to a court, in violation of Article 6 § 1 of the Convention, which provides, inter alia:

"In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing …"

A. Arguments of those appearing before the Court
1. The applicants
77. The applicants maintained that the purpose of the line-up procedure (see paragraph 10 above) had been deliberately to expose the servicemen stationed on and in the vicinity of Christmas Island to radiation for experimental purposes. In support of this contention, they referred to a number of documents, including a 1953 report of the British Defence Research Policy Committee on Atomic Weapons, which requested that tests be carried out during future atomic weapons trials on the effects of different types of explosion on "men with and without various types of protection"; a 1955 Royal Air Force ("RAF") memorandum which stated that "during the 1957 trials [in Maralinga, Australia] the RAF will gain invaluable experience in handling the weapons and demonstrating at first hand the effects of nuclear explosions on personnel and equipment"; and a 1957 War Office circular, again related to the tests in Australia, which stated that "all personnel selected for duty at Maralinga may be exposed to radiation in the course of their military duties".

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.
In their supplementary submissions (see paragraph 6 above), the applicants accepted that the radiation level records produced by the Government to the Court (see paragraph 14 above) would not have assisted them in their claims to the PAT. However, they reasoned that the large number of documents in the public domain relating to the United Kingdom’s earlier nuclear tests in Australia suggested that similar reports would have been prepared in respect of the Christmas Island tests. They therefore contended that important material was still being withheld, and in particular that the relevant information on the radiation doses of servicemen would have been contained in the unreleased records of the health physics controller, who had been responsible for personally monitoring radiation levels on various parts of the Island.

B. The Court’s assessment
1. Applicability
84. It was not disputed by those appearing before the Court that the pension proceedings involved "the determination of [the applicants’] civil rights". The Court agrees. It follows that Article 6 § 1 is applicable.

2. Compliance
85. The Court will consider whether the non-disclosure of documents operated to deprive the applicants of effective access to the PAT or of a fair hearing before that tribunal.
It observes that, in order to succeed before the PAT, the applicants had to raise, on reliable evidence, a reasonable doubt regarding the question whether or not their health problems were causally linked to their service in the armed forces (see paragraph 54 above). Since they alleged that the various conditions from which they suffered had been caused by their exposure to harmful levels of radiation during the Christmas Island tests, it was necessary for them to adduce reliable evidence giving rise to a reasonable doubt, inter alia, that the MOD’s statement that they had not been so exposed was incorrect.

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).
As far as documents showing the extent of each applicant’s exposure to radiation are concerned, it is clear that no personal records existed, since no individual monitoring of servicemen such as the applicants took place during the tests. The applicants have accepted that the records of environmental radiation on Christmas Island would not have assisted them in their claims (see paragraph 79 above). The Court notes the applicants’ assertion that other, relevant, records must have been produced at the time of the tests and are still being retained by the State, but it observes that this assertion has not been substantiated and is thus no more than speculation.

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).
There is no evidence before the Court to cause it to doubt these assertions, particularly in view of the fact that neither of the applicants, for reasons which have not been explained, attempted to make use of the Rule 6 procedure.

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.
It follows that there has been no violation of Article 6 § 1 of the Convention.

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
92. The applicants alleged that the non-disclosure of the documents in question amounted in addition to a violation of their rights to respect for their private and family lives under Article 8 of the Convention, which states:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

A. Arguments of those appearing before the Court
93. The Government maintained that, as with Article 6 § 1, it was not open to the applicants to complain that they had been denied access to documents when they had not taken any steps to seek such access. In any event, in their submission, the documents in question did not concern the applicants personally and would not assist the latter to understand their private lives any better.

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.
Moreover, the Commission was satisfied that, independently of the issues connected to the applicants’ pension claims, a separate question arose for consideration under Article 8, since the State had not, at the time of the Commission’s examination of the case, provided to the applicants on an individual basis any explanation or information as to the nature and impact of their participation in the test programme, despite what the Commission accepted as reasonable concerns on their part, engendered not least by reports indicating an earlier than average age of death in test veterans.
For the above reasons, the Commission considered that the domestic system had not responded in a proportionate manner to the applicants’ interest in obtaining access to the relevant records.

B. The Court’s assessment
1. Applicability
96. The Court recalls that Mr McGinley was serving as a plant operator on Christmas Island at the time of the United Kingdom’s nuclear test programme there, and that he was present at a distance of some 25 miles from five detonations. Mr Egan was serving as a stoker on a ship which, according to the MOD, was positioned some 60 miles from one of the test detonations. During each explosion, the applicants were ordered to take part in a line-up procedure in the open (see paragraph 10 above). In the absence of any individual monitoring, they were left in doubt as to whether or not they had been exposed to radiation at levels engendering risk to their health.

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.
It follows that Article 8 is applicable.

2. Compliance
98. The Court considers that the United Kingdom cannot be said to have "interfered" with the applicants’ right to respect for their private or family lives. The instant complaint does not concern an act by the State, but instead its alleged failure to allow the applicants access to information.
Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. In determining whether or not such a positive obligation exists, the Court will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual, or individuals, concerned (see the Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no. 160, p. 17, § 42).

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.
For these reasons the present case is different from that of Gaskin (cited in paragraph 98 above, p. 9, § 14), where the applicant had made an application to the High Court for discovery of the records to which he sought access.

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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