CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)