CEDH · PRESS;GENERAL;ENG — 28 janvier 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s7ED160F0 { text-decoration:none } .s48F8B750 { font-size:8pt; display:none } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s21B97EC1 { width:25.99pt; display:inline-block } .sE0EA7154 { width:21.33pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s147A4AAD { width:18pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCC843BA8 { width:25.33pt; display:inline-block } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s23A41E03 { width:36pt; display:inline-block } EUROPEAN COURT OF HUMAN RIGHTS [Note1]   74   28.1.2000 [Note2]   Press release issued by the Registrar   JUDGMENT IN THE CASE OF McGINLEY AND EGAN V. THE UNITED KINGDOM   In a judgment delivered at Strasbourg on 28 January 2000 in the case of McGinley and Egan v. the United Kingdom, the European Court of Human Rights decided by 5 votes to 2 to reject the request to revise its original judgment in the applicant’s case (McGinley and Egan v. the United Kingdom judgment of 9 June 1998).   1.   The revision application   (a)   The report of the Commission and the initial judgment of the Court   The applicants, Kenneth McGinley and Edward Egan, British nationals, were born in 1938 and 1939 and live in Paisley and Glasgow, respectively. They took part in nuclear tests conducted by the United Kingdom in the Pacific Ocean in 1958. Before the Commission, they mainly complained that the lack of access to relevant contemporaneous records of those tests in the context of their applications for service disability pensions constituted violations of Article 6 (right to a fair trial) and 8 (right to respect for private and family life) of the European Convention on Human Rights. The parties disagreed on the effectiveness of a procedure by which the disclosure of the desired records could have been sought through an application to the President of the Pensions Appeal Tribunal pursuant to Rule 6 of the Pension Appeal (Scotland) Rules 1981. The Commission essentially considered that this Rule 6 procedure was not feasible and found violations of Article 6 and 8.   Before the Court, further detailed submissions were made by the parties on, among other things, the Rule 6 procedure and judgment was delivered on 9 June 1998. The Court effectively considered that there was no evidence before it to cause it to doubt the Government’s assertions as regards the effectiveness of the Rule 6 procedure in securing disclosure of the documents sought by the applicants, particularly in view of the fact that neither of the applicants had attempted to make use of that procedure. It concluded, by 6 votes to 3, that there had been no violation of Article 6 of the Convention and, by 5 votes to 4, that there had been no violation of Article 8.   (b)   The request for revision   In mid 1998, the applicants asked the Commission to request the revision of the original judgment of the Court pursuant to Rule 58 of the former Rules of Court A. They submitted a series of letters relating to the Rule 6 application of a Mr Doyle (another nuclear test veteran) together with a statement by Mr Doyle’s representative (Mr Reid). That statement described the progress of Mr Doyle’s unsuccessful Rule 6 application and the circumstances in which Mr Reid came to contact the applicants in 1996, when the present case was before the Commission, and in 1998, after the delivery of the initial judgment.   On 14 September 1998 the Commission decided to submit the applicants’ revision request to the Court. The Commission considered, among other things, that it would not have been reasonable to require the applicants to have obtained these facts beforehand and that the facts submitted might have had a decisive influence on the Court's judgment had they been known to the Court at the time.   2.   Procedure before and composition of the Court which heard the revision request   Under the transitional provisions of Protocol No. 11 to the Convention and the transitional rules of the Rules of Court (in particular, Rule 102) which came into force on 1 November 1998, the case fell to be considered by a Chamber of seven [Note3] judges, composed as follows:   [Note4] Elisabeth Palm (Swedish), President Josep Casadevall (Andorran), Volodymyr Butkevych (Ukrainian), Tudor Panţîru (Moldovan), András Baka (Hungarian), Rait Maruste (Estonian), judges, Sir Simon Brown (British), ad hoc judge ,   and also Michael O’Boyle, Section Registrar .   3.   Summary of the judgment   a)   The parties’ submissions   The applicants contended that the series of correspondence submitted with the revision request constituted facts which were discovered by them, and which could not have been reasonably known to them, prior to the delivery of the original judgment. They also argued that the correspondence would have had a decisive influence on the original judgment of the Court because the correspondence demonstrated the ineffectiveness of the Rule 6 procedure, undermined the Government’s written and oral submissions to the Court on which the Court had relied to a significant extent and, consequently, could have had a decisive influence on the Court’s initial judgment. The Government mainly disputed that this documentation could have had a decisive influence on the original judgment.   b)   The Court’s judgment   The Court considered that, although the revision request had been received while the former Rules of Court A applied, the request fell to be considered by the Court in accordance with Rule 80 of the Rules of Court which had entered into force on 1 November 1998. In any event, it was of the view that the substantive requirements Rules 58 and of Rule 80 were the same and, in particular, that the phrase "could not reasonably have been known to that party” in Rule 80 § 1 accorded with the meaning likely to have been given to the word "unknown" in Rule 58 of the former Rules A.   The Court reiterated the principle of the finality of judgments (referring to Article 44 of the Convention), the exceptional nature of the possibility of revision and the consequent strict scrutiny to be applied to requests for revision. The main issue to be decided by the Court was whether the facts (the correspondence) now submitted were “unknown” or “could not reasonably have been known” to the applicants, within the meaning of Rule 80. It was not disputed that the applicants had been in contact with Mr Reid in August 1996; that Mr Reid had informed them that he had unsuccessfully made a Rule 6 application on Mr Doyle’s behalf; that Mr Reid gave the applicants copies of two letters in relation to Mr Doyle’s Rule 6 application; that those two letters were then submitted to the Commission in August 1996 by the applicants; and that the two letters also formed part of the series of letters upon which the revision request was based.   The Court consider that it was clear, from the text of those two letters, that other letters had been exchanged in relation to Mr Doyle’s Rule 6 application. It was also evident, from the text of one of the letters of the applicants of August 1996 to the Commission, that Mr Reid had given the applicants additional and extremely detailed information about developments between 1993 and August 1996 in Mr Doyle’s Rule 6 application. The Court was therefore satisfied that the applicants had sufficiently detailed knowledge in August 1996, from the information and the two copy letters provided to them by Mr Reid at that stage, about the developments in Mr Doyle’s Rule 6 application which had taken place during the period between 1993 and August 1996, for it to have been clear to them that a significant amount of correspondence and documentation had been created prior to that date in relation to that Rule 6 application. In fact, all the correspondence upon which the revision request was based already existed in August 1996.   Accordingly, the Court concluded that, while the applicants may not have actually obtained copies of the correspondence upon which the revision request was based until after the delivery of the original judgment on 9 June 1998, they manifestly were on notice in August 1996 of the existence of that correspondence. Therefore, whether or not the correspondence might by its nature have had a decisive influence on the original judgment, the Court found it established that those facts could reasonably have been known to the applicants prior to the delivery of the original judgment. The request for revision was, accordingly, rejected.   Judges Casadevall and Maruste expressed dissenting opinions and these are annexed to the judgment.   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. 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