STACEY v. the UNITED KINGDOM



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)