AS TO THE ADMISSIBILITY OF
Application No. 16576/90
by Andrew STACEY
against the United Kingdom
The European Commission of Human Rights sitting in private
on 3 December 1990, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 July 1989
by Andrew STACEY against the United Kingdom and registered on 9 May
1990 under file No. 16576/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen. He was born on 6 October
1962. He lives in Basingstoke, Hampshire. He is represented by
Mr. J. Rabinowicz of Messrs. Teacher, Stern, Selby, Solicitors.
In October 1979 the applicant enlisted in the British army.
Eventually, his regiment was posted to Cyprus for a 6 months' tour of
duty.
On 27 December 1981 the applicant was on night time patrol.
He fell down an unlit monsoon drain in the military base and injured
his left thigh. The applicant was ultimately taken to the main
medical reception station in Cyprus where he was attended to by an
army doctor. He contends that the attention he received there was
insufficient. The applicant had to be taken to the main hospital in
Cyprus. The applicant underwent two operations whilst there, both of
which were unsuccessful.
On 7 April 1982 the applicant was transferred to the Military
Hospital at Woolwich in the United Kingdom. Whilst there, he
underwent a further five operations, none of which was successful.
Ultimately, on 12 January 1983 the applicant, against his wishes, was
discharged from the army as being medically unfit. He was sent home
by the hospital.
The applicant was sent to Rowley Bristow Hospital by his
General Practitioner, where he underwent a further operation. On
10 November 1983 the applicant was awarded an annual disability
pension of £770 and a special lump-sum payment of £1,190. A war
disability pension was awarded in February 1988.
On 13 March 1985 the applicant began legal proceedings against
the Ministry of Defence. He alleged, inter alia, that there had been
negligence in connection with the monsoon drain and with the
subsequent treatment.
On 12 April 1987 the Treasury Solicitor issued a Section 10
notice (see post) requiring the applicant to end his proceedings
against the Ministry of Defence. On 23 September 1987 the applicant
formally discontinued proceedings.
At the relevant time, the Crown Proceedings Act 1947 Section
10 (1) ("the 1947 Act") had provided:
"Nothing done or omitted to be done by a member of the armed
forces of the Crown while on duty as such shall subject
either him or the Crown to liability in tort for causing the
death of another person, or for causing personal injury to
another person, in so far as the death or personal injury is
due to anything suffered by that other person while he is a
member of the armed forces of the Crown if
(a) at the time when that thing is suffered by that other
person, he is either on duty as a member of the
armed forces of the Crown or is, though not on duty
as such, on any land, premises, ship, aircraft or
vehicle for the time being used for the purposes
of the armed forces of the Crown; and
(b) [the Secretary of State] certifies that his
suffering that thing has been or will be treated
as attributable to service for the purposes of
entitlement to an award under the Royal Warrant,
Order in Council or Order of His Majesty relating
to the disablement or death of members of the force
of which he is a member:
Provided that this subsection shall not exempt a member of
the said forces from liability in tort in any case in which
the court is satisfied that the act or omission was not
connected with the execution of his duties as a member of
those forces."
Certificates issued by the Secretary of State were binding on
the courts.
On 15 May 1987 the Crown Proceedings (Armed Forces) Act 1987
("the 1987 Act") was passed and entered into force. Its effect is to
put servicemen in the same position as civilians. It provides, inter
alia, in Section 1 as follows:
"... Section 10 of the Crown Proceedings Act 1947 (...)
shall cease to have effect except in relation to anything
suffered by a person in consequence of an act or omission
committed before the date on which this Act is passed."
On 27 January 1989, in reply to a question from the applicant's
Member of Parliament, the Secretary of State for Defence stated that
"... valid claims arising in respect of incidents between the date of
announcement on 8 December 1986 of the intention to repeal Section 10
[of the 1947 Act] and the actual date of repeal, are considered on
an ex gratia basis".
COMPLAINTS
The applicant complains that there has been a violation of
Article 14 read in conjunction with Article 6 para. 1, and that he has
been prevented from having his civil rights determined by a tribunal
established by law. He complains that he has been discriminated
against vis à vis those servicemen who suffered injury after the
announcement on 8 December 1986 of the repeal of "the 1947 Act" since
they may benefit from an extra-statutory system of compensation. The
applicant claims that the failure to include earlier cases, such as
his, within the scope of the 1987 Act is discriminatory.
THE LAW
1. The applicant complains of a violation of Article 14 (Art. 14)
of the Convention in conjunction with Article 6 para. 1 (Art. 6-1)
in that he is unable to put his claim for compensation to the
domestic courts, although a person whose accident took place after 15
May 1987 would be entitled to claim compensation under the Crown
Proceedings (Armed Forces) Act 1987 ("the 1987 Act") and even a person
injured after 8 December 1986 would be eligible for ex gratia
consideration of his case.
The provisions at issue provide, so far as relevant, as
follows:
Article 6 para. 1 (Art. 6-1) :
"1. In the determination of his civil rights ...
everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law..."
Article 14 (Art. 14) :
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground ...."
The Commission first recalls that the provisions of the Crown
Proceedings Act 1947 ("the 1947 Act") did not discriminate against
servicemen within the meaning of Article 14 (Art. 14), since a pension
entitlement had been substituted for the right of access to court
without arbitrariness (cf. Dyer v. the United Kingdom, No. 9310/81,
Dec. 16.7.86, D.R. 39 p. 246, pp. 253-256). This is not contested by
the applicant.
2. As to the alleged discrimination between the applicant and
servicemen injured after 15 May 1987, the Commission recalls that
differential treatment arising out of a legislative change is not
discriminatory where it has a reasonable and objective justification
in the interests of the good administration of justice (cf. No.
9707/82, Dec. 6.10.82, D.R. 31 p. 223, pp. 226-227). In the present
case, the Commission considers that the application of the statutory
improvement to the procedural position by servicemen only to those
injured after the date of the legislation does not appear arbitrary or
unreasonable in any way. The application of such an improvement to
prior claims could cause considerable difficulties in connection with
the benefits received under the 1947 Act.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
3. As to the alleged discrimination between the applicant and
servicemen whose claims arose between 6 December 1986 (the date of the
announcement of the repeal of Section 10 of the 1947 Act) and 14 May
1987, and even assuming that Article 6 para. 1 (Art. 6-1) of the Convention
applies to an ex gratia consideration of whether to grant
compensation, the application of the ex gratia consideration only to
servicemen injured subsequent to the announcement of the intention to
repeal Section 10 of the 1947 Act and prior to the new provisions does
not appear arbitrary or unreasonable in any way.
It follows that the complaint of discrimination in this
respect is also manifestly ill-founded under Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE..
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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