Environmental risks and access to information
II. RELEVANT DOMESTIC LAW 162. At the Court ’ s request, the Government submitted numerous particulars of legal instruments adopted with a view to protecting the safety of divers. In the light of the factual circumstances complained of in the instant case, the following legal texts appear particularly noteworthy. 163. From the Royal Decree of 15 May 1964, laid down pursuant to the Continental Shelf Act of 21 June 1963 ( kontinentalsokkelloven ), it followed that exploration on the Shelf had to be carried out "in a prudent manner". This was continued in the Royal Decree of 9 April 1965, with a view to exploration for and exploitation of petroleum deposits, while emphasising that the relevant ministry could issue more specific safety rules ( Article 37) and appoint inspectors ( Article 45). 164. The first independent safety regulations relating to exploration and drilling (not production), laid down in the Royal Decree of 25 August 1967, maintained the requirement that exploration and drilling should take place in a prudent manner in accordance with good and reasonable practices ( Article 4), and in Article 121 contained special rules regarding diving: “A plan shall be submitted for approval, to the Ministry or anyone authorised by it on how diving operations are to be conducted before the work is commenced. The plan shall contain details concerning the equipment to be used and what safety precautions will be taken to protect the life and health of the diver. Unless the diver has an approved Norwegian diver ’ s certificate, permission must be obtained in advance from the Ministry or anyone authorised by it before diving operations can commence. Diving operations must be carried out in a safe manner according to the regulations in force at any time.” 165. Authority under this provision was delegated to the Norwegian Labour Inspection Authority, which on 26 March 1971 sent a circular to ‘ All diving operators ... on the Norwegian Continental Shelf ’. The circular included, inter alia, an English translation of Article 121, together with a requirement that diving bells were always to be used under certain specific circumstances. 166. On 1 July 1978 the Petroleum Directorate adopted with immediate effect a Temporary Regulation on Diving on the Norwegian Continental Shelf, a comprehensive set of rules setting out specific safety requirements for diving operations, including supervision of decompression, divers, diving contractors, diving supervisors, diving equipment, breathing gas, evacuation under pressure, fire protection, and log booking. The latter was to contain, inter alia, the maximum depth reached on each dive, the bottom time on each dive, the type of equipment and breathing mixtures used, the work done by the diver on each occasion, the decompression procedure followed by the diver on each occasion (including the designation of the decompression tables used and possible deviations from these), any decompression sickness, other illness, discomfort or injury suffered by the diver, any other factors relevant to the safety and health of the diver, and any dangerous occurrences or irregularities. 167. The 1978 Regulation also set specific requirements as regards the medical fitness and qualifications of divers, the safety of the divers ’ environment (temperature, humidity, noise and sanitary conditions and heating systems), and breathing mixture, amongst others. It further provided that the diving contractor was to have a liaison agreement with a medical doctor experienced in hyperbaric medicine and approved by the Directorate of Health. That doctor was to work out instructions and follow up the diving operations and the diving tables by assessment of reports with regard to medical matters referred to in the diving operations logbook, within a reasonable time and not later than six weeks after the dive, so that necessary improvements with respect to plant, equipment and procedures could be made. The above-mentioned assessments should always be available to the Petroleum Directorate. 168. Article 3.4 (“Approval procedure”) of the Regulation provided: “No diving operation shall start before the Petroleum Directorate have approved the diving rules in accordance with Appendix 1 and details about the equipment which will be used during the operations. The above- mentioned documents shall be submitted to the Petroleum Directorate at least twenty-one days prior to commencement of the diving operations.” Article 3(k) of the Appendix listed “compression and decompression tables” among the elements defined as procedures during diving. Pursuant to Article 5.3 (“Accessibility to the diving rules”) of the Regulation, “[a]ny person engaged in or likely to be engaged in diving operations, shall have access to a copy of the diving rules or a document setting out the effect of the rules as far as they concern that person.” 169. In 19 80 the Directorate issued a revised version of the 1978 Regulation introducing for instance diving licence requirements, new competency requirements, time limitations on the periods during which a diver could be kept in saturation, in water and in a diving bell, and stricter requirements for reporting accidents. 170. The Government also submitted copies of Regulations of 1980 and 1984 on diving systems control, of four Royal Decrees of 28 June 1985, on safety supervision, internal control, internal control for ship owners and supervision of safety measures, which had been issued following the adoption of the Petroleum Activities Act 1985 ( petroleumsloven ). In addition they submitted a series of more recent regulations issued in 1990, 2001 and 2003, as well as several royal decrees and regulations from 2010. The Government drew attention to a legislative amendment of 8 March 1995 whereby the 1977 Working Environment Act was made fully applicable to offshore activities. THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION 171. The applicants complained that they had sustained damage to their health after working in diving operations in the North Sea and, as regards the second, third and fourth applicants, also following their participation in certain test dives. This had resulted from the failure of the Norwegian authorities to protect their rights under Articles 2 and 8 of the Convention which, in so far as is relevant, read: Article 2 “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law ... ” Article 8 “1. Everyone has the right to respect for his private ... life ... 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 ... the economic well-being of the country ..., for the protection of health ..., or for the protection of the rights and freedoms of others.” 172. The Government contested that argument. A. Admissibility 173. In their written pleadings to the Court the Government conceded that Mr Vilnes and Mr Muledal had exhausted domestic remedies but argued that, in the absence of any information to the contrary, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen had not. However, they refrained from pursuing the argument at the oral hearing before the Court. 174. The Government also affirmed that they would not challenge the applicants ’ victim status within the meaning of Article 34 on account of the various amounts paid to them in compensation in acknowledgment of political and moral responsibility. 175. On the other hand, the Government invited the Court to declare the complaints of all seven applicants inadmissible as incompatible ratione materiae with the provisions of the Convention, or in any event as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4. 176. The applicants asked the Court to reject the Government ’ s invitation to declare their complaints inadmissible on substantive grounds. 177. As regards the issue of exhaustion of domestic remedies, the third to seventh applicants pointed out that with the agreement of the Government the judicial proceedings concerning these applicants had been adjourned pending the outcome of, inter alia, Mr Vilnes and Mr Muledal ’ s case (see paragraphs 114 to 117 above). From the Supreme Court ’ s judgment of 8 October 2009 it was clear that the third to seventh applicants would have had no prospects of success if they had pursued their case before the domestic courts (see paragraphs 144 to 159 above). 178. The Court, having regard to the parties ’ submissions, is satisfied that both the first and second applicants have exhausted domestic remedies as required by Article 35 § 1 of the Convention with respect to their complaints under Articles 2 and 8 of the Convention. Moreover, in view of the reasoning and outcome of the proceedings pursued by them and which ended in the Supreme Court ’ s judgment of 8 October 2009 (see paragraphs 143 to 159 above), the Court accepts that there were special circumstances which absolved the third to seventh applicants from their normal obligation to exhaust domestic remedies with respect to their complaints under the same provisions ( see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996 IV, and Van Oosterwijck v. Belgium, 6 November 1980, §§ 36 to 40, Series A no. 40 ). The Court further observes that the said complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. The applicants ’ complaints under Articles 2 and 8 must therefore be declared admissible. B. Merits 1. The applicants ’ submissions 179. The applicants complained generally, with reference to Article 2, that the respondent State had failed to take necessary measures to prevent the divers ’ lives from being put at risk that was avoidable; in particular, they had failed to ensure that a legal framework of safety regulations was in place to protect the divers, had automatically and widely granted exemptions from safety regulations, had failed to carry out adequate supervision in order to identify and take corrective measures in respect of defects endangering human lives, and had made it possible for the diving companies to use too - rapid decompression tables, despite the frequent occurrence of decompression sickness among divers. Adequate measures would have included the harmonising of decompression tables, the provision of on-the- spot medical assistance during diving operations, requirements for diving competence and other professional competence and technical expertise, the availability of real means of evacuation, proper maintenance of equipment, fewer dispensations being given and further legislative and licensing measures being taken. As early as the 1970s it ought to have been possible for the State to take such measures, many of which could have been taken without any additional funding and legislation being needed. The applicants prayed in aid the following judgments by the Court : L.C.B., cited above, §§ 36-41 and 46; Öneryıldız, cited above, § 71; Budayeva and Others, cited above, §§ 130 and 175; and Öçkan and Others v. Turkey ( no. 46771/99, §§ 40-50 and 57, 28 March 2006 ). The applicants emphasised that Article 2 covered the workplace ( see Pereira Henriques v. Luxembourg, no. 60255/00, §§ 59-63, 9 May 2006 ) and the State ’ s duty to take appropriate steps to safeguard citizens from being avoidably put at risk applied to all dangerous activities, in particular industrial risks ( see Budayeva, cited above, §§ 130 and 175). 180. More specifically on the subject of decompression tables, the applicants submitted that, according to information provided by diving companies, decompression sickness had occurred at a rate of five per cent. It followed that a diver would contract the illness after every twentieth decompression. If on average four divers took part in every diving operation, decompression would occur every fifth operation. Accordingly, most divers would contract the illness in the course of their career. 181. The State had been aware that the rapid decompression tables had been a central factor in competition between diving companies, a factor that the State could have eliminated even during the pioneer period by requiring, inter alia, the standardising of tables and/or the setting of conditions for the approval of individual diving operations. Decompression sickness had been practically eradicated in 1990 after the introduction, on the initiative of diving companies, of standard requirements for diving tables. All the companies had been positive about this. As a consequence, diving tables were no longer a competitive factor. 182. The applicants argued that the State ought to have ensured that the diving tables used were among the most conservative ones, that the tables formed part of the basis for authorising diving operations, and that the choice of tables be eliminated as a competitive factor. It ought to have been possible for the State to impose transparency about and the harmonising of tables. Leaving this matter to the diving companies and/or the operators had been irresponsible, since these were in competition and the non-disclosure of rapid tables had increased their opportunity to obtain contracts. 183. The respondent State had failed in its duty to provide information ( see Öneryıldız, cited above). It would not have been difficult for the State – in its capacity as a legislative and executive authority and as an authority granting authorisations – to require openness about tables and the harmonisation of tables. The applicants had not been sufficiently informed about the risk to which they had exposed themselves when accepting diving assignments in the North Sea. 184. On the contrary, Mr Vilnes stressed, he had been informed that the dives had been authorised by the State, that decompression sickness would not lead to lasting disabilities (except for bone necrosis) and that such illness could be safely treated if done according to available tables. He had not been informed that by accepting diving assignments he risked permanent damage to his brain, bone marrow, nerves, and hearing, and extensive psychological damage after diving, even after using the tables. Mr Vilnes argued that he had never been given any insight into the tables. The principles of the tables had not only been recognised as confidential but had also been incomprehensible to those concerned. 185. Similarly, the other six applicants complained that not only had the Norwegian authorities refrained from abolishing dangerous diving tables but also that, because of their confidentiality, the divers had not known whether or not they were agreeing to work with the use of dangerous diving tables when they agreed to work for a diving company. A further aspect of the matter had been that when diving sickness occurred, the divers had not benefitted from any medical advice on the spot, but critical treatment had been carried out “by colleagues, according to a table booklet which they had been given at the time.” 186. The applicants submitted that, despite the frequent occurrence of decompression sickness among divers, the authorities had allowed the companies to keep decompression tables secret, whilst being aware that decompression speed was a competition factor between the diving companies, and that regard for divers ’ health thus ran counter to strong commercial interests. An illustration of this was the Petroleum Directorate ’ s letter of 21 June 1984 to the Diving Medical Advisory Committee in 1984 (see paragraph 84 above). There could be no doubt that the Norwegian authorities had been aware of the risks involved in North Sea diving operations. They had a duty to take appropriate, effective measures. To share the information with those at risk would often be the easiest accessible and most rudimentary measure to safeguard Convention rights laid down in Articles 2 and 8 of the Convention. According to the Court ’ s case-law, the respondent State had a duty to provide effective protection for the applicants, with a particular emphasis on the duty to provide information about the risks involved in diving operations and rapid tables. 187. In North Sea diving operations the word was that diving was prudent and state- approved, which also followed from the statutory regulations. Without the objective facts about the disturbing differences between tables, and the high occurrence and consequences of decompression sickness related to the tables in use, divers had no opportunity to make a meaningful assessment of the risks involved in the operations. Therefore, the Norwegian authorities had a duty to provide divers with the information necessary to assess the real risk level, including the escalation of risk connected to table competition. The State should in the least have made the risks involved in the diving tables known to the applicants by requiring disclosure of the tables, by providing the divers with a risk assessment of the use of the tables on operations without doctors available for treatment, and by providing information about the conditions on which the authorities approved the tables - or rather the absence of any such conditions. 188. Mr Vilnes had never consented to or acted in a way that could be taken to mean that he had consented to the use of rapid tables, nor had any of the other applicants given such consent. Their health had been adversely affected by the use of rapid decompression tables, as they had had immediate and prolonged symptoms of decompression sickness as well as long - term illnesses causing occupational disability. As the High Court had found, Mr Vilnes ’ brain and spinal cord damage had probably been caused wholly or in part by a combination of a too- rapid table and the absence of a medical doctor for treatment. The applicants submitted that their respective cases of brain, nerve, and lung damage had been caused by the tables in question, as had Mr Lindahl ’ s hearing impairment. 189. The Government had provided no reasonable explanation to justify why for twenty-five years they had not obliged the diving companies to disclose their decompression tables or to comply with the most conservative tables and their own standard of due care. Notwithstanding the standard of due care applicable to diving procedures pursuant to Article 121 of the Royal Decree of 1967 (see paragraph 164 above), the Labour Inspection Authority had approved the procedures regardless of the diving tables, and in most cases without even having access to them (Lossius Report page 74). 190. Had they been given access to all the diving tables, the applicants might have been able to compare the tables and to assess the risks themselves. They might have been alarmed by the great differences in decompression times and might have opted to work elsewhere. The disclosure of the tables ought to have been combined with a risk assessment by the authorities, in order to give the divers sufficient knowledge to assess the risks involved. 191. Moreover, the disclosure of the tables would have generated public pressure on the diving companies, fear on their part of being unable to obtain contracts and to recruit divers, and might conceivably have compelled them to use the most conservative tables. Had the authorities in addition discontinued or improved their own practice of pre - approving tables regardless of whether they were safe, there would clearly have been a significant effect on the diving companies ’ use of rapid tables. 192. The Norwegian Labour Inspection Authority ’ s letter to the University of Zurich of 16 April 1973 (see paragraph 83 [5] above) showed that even at the very beginning of the applicants ’ careers in the North Sea, the State considered that the disclosure of decompression tables would result in harmonisation of the decompression tables, focusing on the divers ’ health and lives, not only on the financial benefits of rapid decompression. 193. Mr Vilnes in addition complained that four specific acts or omissions highlighted in his appeal to the Supreme Court (the prior authorisations of the diving operations from (i) Arctic Surveyor (ii) Tender Comet; (iii) the dispensation given from the requirement as to the maximum length of umbilical used and (iv) the failure to stop the Tender Comet diving operation ) constituted a failure on the part of the authorities of the respondent State to protect his right to life under Article 2 of the Convention. 194. Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson added to their complaint certain grievances related to their experiences of test diving (see paragraphs 44, 50, 57, and 109 to 112 above). They alleged that the State should not have permitted such experiments on human beings for the sole purpose of boosting economic prosperity, but should rather have allocated resources to the development of technical means of solving the issue of maintenance of deep- water pipes. The test diving had endangered the lives of divers who had been unable to withdraw voluntarily, in violation of their right to protection of life and with reference to the Helsinki declaration. 195. The State had been one of the owners of the NUI facilities until 1985, and had laid down the conditions for petroleum exploitation in the North Sea, obliging the oil companies to prove that it was possible to install and maintain pipes down to 400 metres, thus obliging test dives to take place. The State also had observers at the test site. Several medical experts had publicly expressed worries that health concerns had been pushed aside. On site, the authorities observed that dives were not aborted : even when divers lost consciousness or demanded an "all stop" there was no intervention. Although aware of the ongoing activities and the risks and damage to health involved, the State had not intervened to set any limits on test diving. 196. In the NUTEC preparation of the Troll dive in 1985, down to 450 metres, and in which Mr Sigurdur P. Hafsteinsson had participated, the divers were informed that the relevant diving tables had previously been used during the Deep Ex dives, in which there had been no signs of decompression sickness. However, the divers who had participated in the Deep Ex dives had experienced serious signs of decompression sickness. 197. The participant divers also received an Instruction for Training Programme for Onshore Manned Verification from their employer. The Instruction advised the test divers that doppler ultrasound technique would be used to monitor the presence or absence of gas emboli in the carotid artery. Moreover, they were informed that this procedure had been used previously on two deep dives at NUTEC with satisfactory results. However, when the same procedure was used during the Deep Ex I and II dives, it revealed that gas bubbles were entering the divers ’ heads during decompression but disturbingly never exited their heads. Those who were still alive were questioning the long- term effects of these cerebral bubbles. Whilst all the test divers who had taken part in the Deep Ex dives had been injured, the information given by the employers to the Troll test divers, namely that the procedure had been used previously with satisfactory results, was therefore misleading and not in compliance with the Helsinki declaration requirements of an informed consent. 198. On several occasions the Ethical Committee had approved test dives which had already taken place, thereby revealing that the ethical control of the dive and the protection of the divers were illusory. For instance, the Comex test dive down to 350 metres had commenced before it was approved by the Ethical Committee. On 27 November 1980 the Ethical Committee had approved the Deep Ex I dive, which had in fact taken place from 4 to 23 November 1980, thus prior to the approval. Given the fact that NUI/NUTEC could carry out experimental diving without seeking the prior consent of the Ethical Committee, it was clear that the experimental dive would be approved under any circumstances. The State had in fact not documented a single incident where a dive had not been approved. The review of experimental diving by the Ethical Committee thereby gave the divers a false sense of protection against dangerous and unethical experimental activity. 2. The Government ’ s submissions 199. The Government invited the Court to rely on the assessment of facts made by the Supreme Court and, concurring with the reasoning of the latter (see paragraphs 146 to 160 above) requested the Court to find no violation of Articles 2 and 8 of the Convention in the present case. 200. An important consideration was that the applicants had of their own volition and in return for considerable sums in remuneration entered into the activities in respect of which they now complained of having been victims of Convention violations. 201. Article 2 was inapplicable since, as the Court held in Makaratzis v. Greece ( [GC], no. 50385/99, § 50, ECHR 2004 ‑ XI ), “it [was] only in exceptional circumstances that physical ill-treatment ... which [did] not result in death [might] disclose a violation of Article 2 of the Convention.” In the present case, the Government stressed, the applicants were alive; the fact that other divers operating in the North Sea in the same period as the applicants had died from a variety of causes should not influence the Court ’ s assessment of whether the applicants ’ rights under Article 2 had been breached. 202. In any event, the Government were of the firm view that the respondent State had satisfied its duty to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the applicants ’ right to life and enjoyed a margin of appreciation in its choice of particular measures (see Budayeva and Others, cited above, § 134). Were the Court to find a violation in the instant case it would entail placing an impossible or disproportionate burden on the Norwegian authorities (see Budayava and Others, cited above, § 135). There were no examples in the Court ’ s case-law where occupational hazards and the element of voluntary participation in dangerous activities had played a significant role in the Court ’ s assessment of whether the positive obligations under Article 2 had been complied with. 203. Nor were the matters complained of covered by the applicants ’ right to respect for “private life” within the meaning of Article 8. Whilst the applicants, relying on Roche ( cited above), claimed that Article 8 applied to the working environment, it should be noted however that in the aforementioned case the Court had found Article 8 applicable because it concerned a complaint about access to essential information which related to the particular source of risk at issue in that case ( ibid., § 155 ). The Court had taken a similar approach in McGinley and Egan v. the United Kingdom, 9 June 1998, §§ 96 and 97, Reports of Judgments and Decisions 1998 ‑ III ) where, stressing the particular circumstances at issue there, it had found Article 8 applicable because the applicants had experienced anxiety and uncertainty – feelings that impacted on their “private life” – as a combined result of their exposure to extremely hazardous and intangible dangers and their inability to procure essential information about the same dangers. 204. In so far as the Government were aware, the Court had not applied Article 8 in cases regarding occupational risk where the State ’ s obligation to protect workers from injuries had been cited. They invited the Court to adopt the same approach as in Bykov v. Ukraine (no. 26675/07 (dec.) 16 April 2009 ), where it found the applicants ’ complaints under Article 8 inadmissible as incompatible ratione materiae in so far as they cited the right to respect for private life. 205. The Government moreover asked the Court to reject the applicants ’ submission that the fact that during saturation diving they had remained in diving chambers had brought their right to respect for “home” into play. 206. Further, on the specific issue whether the authorities of the respondent State had a duty to provide the applicants with information regarding the risks involved in diving operations, in particular those related to the use of rapid decompression tables, the Government argued as follows. The case under consideration differed significantly from previous cases concerning the existence of a duty on the part of the State to provide information. Whilst McGinley and Egan and Roche (both cited above), had concerned the duty to provide information after the occurrence of health hazards, the instant case concerned a claim that the information should have been provided to individuals prior to their agreeing to carry out the professional activities in question. A further distinguishing feature was that the State ’ s involvement in the relevant activities had been confined to being a regulator and supervisor on the Norwegian Continental Shelf. The divers had not been in the employment of the Norwegian Government but had been employed, or had engaged themselves, in private ventures. To establish a duty for the authorities to actively ensure that an occupational group, prior to undertaking its work tasks, be informed about factors that could be relevant for assessing the health risks potentially involved in their private enterprise, would be to stretch the extent of positive obligations under the Convention way too far. The existing standard on access to information enunciated in Roche (cited above, § 160), requiring the establishment of “an effective and accessible procedure” enabling the persons concerned “to seek all relevant and appropriate information” had clearly been complied with in the applicants ’ case. 207. The authorities had indeed required the diving companies to impart information regarding their tables, and the latter had submitted information regarding diving procedures to the former. This arrangement had already been provided for in Article 121 of the 1967 Norwegian Diving Regulations, and had subsequently been confirmed in the 197 8 Temporary Diving Regulations. 208. It was also a fact that the applicants, as individuals who had performed the dives according to the tables, had access to the tables used in their own dives. According to Article 5.3 of the 1978 Temporary Diving Regulations (see paragraph 168 above), the divers were obliged to “be familiar” with the operational procedures to be used. Moreover, since many divers were not permanently employed by just one company but were engaged by different companies for different operations, they had also had access to the tables used by their respective employers. The applicants undoubtedly had access to the various tables today. Also, information relating to the comparison of tables had been available in a report on that subject prepared by the Petroleum Directorate in 1991. Even when the dives had been undertaken the divers had been acquainted with the challenges posed by the use of rapid tables, as specifically stated in section 5.7.4 of the Lossius Report (see paragraph 83 above). 209. More generally, by virtue of the Freedom of Information Act, whatever information was available to the authorities was in principle also accessible to the applicants. The fact that the companies regarded the tables as confidential business information might have prevented the applicants from gaining access. Whether that would have been the case could not be known, since the divers did not pursue such legal avenues. 210. The basic requirements under the positive obligations doctrine were twofold, firstly that the authorities in fact knew or ought to have known the risks involved, and secondly that on the basis of such knowledge they failed to act reasonably in accordance with it. Relying on the Supreme Court ’ s reasoning as summarised in paragraph 147 (e) and (f) above, the Government maintained that the Norwegian authorities did not fail in this regard. 211. As to what the authorities knew or ought to have known, the Government stressed that there was a broad-based opinion that diving did not have serious long-term effects if there was no decompression sickness. Decompression sickness in itself was not considered to be particularly dangerous. At the same time, it was established that the harmful mental effects of extreme life-threatening situations were known. This was essential information. The authorities did not deny that deep - sea diving could have adverse effects on the health of divers. However, there could only be certainty that those hazardous effects would occur in the event of extreme and life-threatening situations. The Norwegian authorities ’ responsibility must be measured against what was known at the time the applicants conducted their dives. In this respect, it ought to be recognised that awareness of possible health hazards related to deep dives had come gradually for all parties involved, in accordance with evolving experience, scientific development and new studies. This had been emphasised in the consensus statement from the 1993 Godøysund conference. The point that awareness had developed gradually for all parties concerned, had again been made in the report from the follow-up consensus conference in Bergen in 2005. 212. As to what the Norwegian authorities in fact did in response to what was known at the time, it ought to be observed in the first place that they took active steps to ensure that the tables in use did not constitute health risks. This was for instance the case in 1984, when some diving companies had submitted new tables for saturation diving. The Petroleum Directorate had that year initiated a project which in 1986 resulted in what became the Hempleman Report. 213. Moreover, as was shown in a table prepared by the Petroleum Directorate, from as early as 1980 there had been a dramatic reduction in the number of incidents of decompression sickness. This reduction indicated that the joint efforts of Norwegian authorities and the diving industry was already proving effective at that early stage. 214. The concept of “ harmonising ” of tables ought not to be confused, as the applicants apparently did, with two other forms of effort undertaken by the authorities : on the one hand, their general work on collecting information and experience regarding tables to enable them to evaluate ( as exemplified by the Hempleman Report from 1986, see paragraphs 85 to 88 above) the tables disclosed by the companies, and, on the other hand, their effort to develop specific national tables in the early 1970s ( mentioned in section 5.7.4 of the Lossius Report, (see paragraph 83 above ). 215. The Government further submitted that as early as 1990, when the work on harmonisation was initiated, there were “only small differences” between the companies ’ decompression tables, as evidenced by the Petroleum Directorate ’ s Report of 1991. Thus, the harmonising of tables, which was completed in 1991, was a supplement, or rather a complement, to what had already been accomplished with regard to divers ’ safety. Harmonisation was in itself not crucial for the reduction of decompression sickness. 216. In this connection, it should be borne in mind that, to the Government ’ s knowledge, no other country has yet introduced standardised tables for saturation dives. 217. Ever since operations on the Norwegian Continental Shelf began in the 1960s the Norwegian authorities had been active in reducing the risks involved in offshore diving. The extent to which they had been involved in North Sea activities through regulatory and supervisory measures had been demonstrated in detail before the Court. To this it could be added that, in order to find a scientific basis for decompression procedures and tables that would safeguard divers ’ health, they pushed research and development, allocating over time an estimated EUR 125 ,000,000 for these purposes (see section 4.2 of the Lossius Report and the Kromberg Report ). 218. Finally, the Government pointed out that the applicants had not provided the Court with sufficiently precise details to enable the Court to ascertain that there was a link of causality between the alleged violations committed by the Norwegian authorities and their individual health problems. In particular, it would not be possible for the Court to hold, on the evidence of the present case, that it was in fact omissions on the part of Norwegian authorities which had prevented the divers from assessing the health risks involved in rapid tables that had been the cause of their health problems. In the absence of the requisite details submitted by the applicants, there might be a whole range of other possible reasons why the applicants ’ health had deteriorated. 3. The Court ’ s assessment (a) Introduction 219. The Court is unable to accept the Government ’ s argument, based on Makaratzis, that Article 2 was inapplicable. That case concerned, inter alia, the use of force by police officers in a hot-pursuit operation which had not in the event been lethal. Irrespective of whether the police had actually intended to kill him, the applicant was found to be the victim of conduct which by its very nature had put his life at risk, even though he survived. The Court found there that Article 2 was applicable and sees no reason for arriving at a different conclusion in the present case. 220. In applying this provision to the instant case, the Court will have regard to the general principles stated in Öneryıldız and further elaborated in Budayeva and Others, both cited above, as summarised in Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, §§ 157-161, 28 February 2012: “157. The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 151 above ) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız, cited above, § 89, and Budayeva and Others, cited above, § 129 ). 158. The Court considers that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 71 and 90). 159. Among these preventive measures particular emphasis should be placed on the public ’ s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89- 90, and Budayeva and Others, cited above, § 132 ). 160. As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres (see Budayeva and Others, cited above, §§ 134-35). 161. In assessing whether the respondent State complied with its positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities ’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved. The scope of the positive obligations imputable to the State in the particular circumstances would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation (see Budayeva and Others, cited above, §§ 136-37).” 221. The Court cannot but note that, apart from the seriousness of the applicants ’ allegations under the Convention, the present case is characterised by a high degree of complexity and the presence of a number of imponderable factors. Not only are the facts complained of extensive and dating far back in time, the grievances alleged by the applicants also concern a wide range of alleged failures by the authorities of the respondent State to protect them against occupational injuries raising issues of a highly technical nature. 222. The Supreme Court pointed out that diving was a risky activity and that this ought to be the starting point for the assessment. Nonetheless, the Supreme Court continued, it had been clear that the risk to which the North Sea divers had been exposed exceeded what they had the right to expect. When the diving had taken place, uncertainty had prevailed as to the injuries that later materialised. The view that many deep sea dives could lead to neurological injuries had emerged gradually. Even when the Lossius Commission had produced its report at the end of 2002, it concluded that well controlled research on later and delayed effects was missing ( NOU 2003:5, p. 43). Under these circumstances, the divers could not be regarded as having accepted the risk of after-effects that were unknown to them. (see paragraph 145 above). The Supreme Court also stated that since under the applicable regulations it had been the task of the authorities to consider whether the diving could be carried out in a safe manner, they had been actively involved in the matter and had been in a position to prevent a given diving operation from taking place (see paragraph 147 (b) above). At the same time, regard ought to be had to the knowledge possessed at the material time – an assessment of liability ought not to be based on hindsight – and the fact that, as already mentioned, diving was in itself a risky activity, especially deep - sea diving related to the development of oilfields (see paragraph 147 (c) above). 223. The Court will take the above-mentioned considerations as a starting point for its own examination of the case under the Convention. Unlike the national courts, who examined the matter from the angle of national compensation law ( see the summary of the Supreme Court judgment at paragraph 146 ), it sees no need to consider in detail the degree of involvement of the respondent State in the hazardous activity in question, since the Convention obligation applies to “any activity, whether public or not” (see Kolyadenko and Others, cited above, § 158). ( b ) As regards the applicants ’ general grievances 224. Having regard to the careful and thorough review carried out by the national courts at three levels of jurisdiction, notably in their examination of the questions of liability under domestic compensation law, the Court would be cautious about substituting its own assessment of the facts for theirs (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, § § 29 and 30, Series A no. 269); it sees no reason to call into doubt the following assessments made by the Supreme Court and also the High Court (the latter especially on some points not admitted for review by the Supreme Court) : (i) That the regulatory framework in place at the relevant time showed that the authorities had sought to protect divers ’ safety responsibly and to actively improve the protection of their safety (see paragraph 147 (d) above); (ii) That the publicly funded supervision had not been organised in an irresponsible manner (see paragraph 147 ( f ) above); (iii) That the authorities had in the main been aware of the North Sea divers ’ working conditions and demands for improvements but, because of deficient reporting, had probably not had a complete picture of accidents and other undesirable occurrences (see paragraph 147 ( g ) above); (iv) As regards the knowledge possessed at the time of the effects, including long-term ones, of diving, and of the psychological effects of extreme and life- threatening situations (see paragraphs 147 ( h )-( i ) above); (v) That the administrative dispensation practices regarding the applicable saturation time and length of the umbilical, and the relatively strict rules combined with a lenient attitude to the issue of dispensations had been based on a balancing of interests, hence the view that such practices would lead to better control than under more liberal rules (see paragraph 147 (j ) above); (vi) That, as regards the applicants ’ general criticism of the inspections, those carried out by the Labour Inspection Authority had been fewer in number than those by the Petroleum Directorate, which could mainly be explained by the resources at their disposal (see paragraph 147 ( m ) above); (vii) That there was no information to the effect that a lack of professional qualifications on the part of other divers had created situations that had endangered Mr Vilnes and Mr Muledal (see paragraph 147 ( n ) above); (viii) That the rules imposed on the diving companies contained detailed safety requirements regarding diving equipment, that there was little information about episodes concerning the appellants and that no blameworthy passivity on the part of the authorities had been documented (see paragraphs 147 ( o ) above). ( ix ) That the issue of hyperbaric evacuation (re. case of Mr Muledal) had been addressed in the 1978 Regulations, and that no passivity on the part of the Labour Inspection Authority or the Petroleum Directorate had been shown, nor could it be assumed that the problem had had any consequences for the appellants (see paragraph 147 ( p ) above). ( c ) As regards grievances related to test diving 225. The Court also notes that, after a detailed assessment of, inter alia, Mr Muledal ’ s complaints regarding the test diving, the Supreme Court found no basis for holding the Labour Inspection Authority liable on account of negligence in respect of its authorisation and supervision thereof (see paragraphs 149 and 150 above) nor did it find the authorities responsible for any breach of Articles 3 or 8 of the Convention (see paragraph 160 above). The divers had been informed about the test dives beforehand, the test dives had been approved by the competent bodies after a thorough examination according to relevant medical and ethical norms and guidelines and in the light of information available at the relevant time. There was no support for holding that the delayed injuries sustained by Mr Muledal were attributable to these test dives. The Court finds no grounds to arrive at a different conclusion. Nor does it find any grounds to regard differently the complaints made by Mr Lindahl and Mr Sigurdur P. Hafsteinsson in respect of the test dives in which they had participated (see paragraph 109 above). The suggestion that the Deep Ex I dive had been implemented before approval by the ethics committee is not borne out by the documents presented to the Court, from which it appears that the recommendation of approval pre-dated rather than post-dated the beginning of the dive (see paragraph 109 above, item (e) ). 226. The Court is equally not persuaded by their argument that the experiences in the Deep Ex I and II dives had been presented as trouble- free to those who had later participated in the Troll dive ( see paragraph 110 above) or that the authorities were responsible for any misleading information being given about those experiences by the employers to the divers on the latter occasion. 227. In the Court ’ s view, it was in the nature of things that test dives, whether they were experimental diving or verification diving (see paragraph 107 above), involved certain risks which made it difficult to compare that kind of activity with North Sea diving operations generally. ( d ) Other incidents complained of 228. As regards Mr Vilnes ’ complaints about what he described as the authorities ’ four acts or failures to act in relation to certain incidents at Arctic Surveyor in 1977 and at Tender Comet in 1983 (in respect of which he was denied leave to appeal by the Supreme Court) (see paragraph 143 above), the Court observes that his submissions that on the former occasion he had been exposed to serious decompression sickness owing to excessively rapid decompressions were quite specific and reasonably clear, as was his allegation regarding decompression tables used on the latter occasion. The Court will return to these matters below. 229. On the other hand, most or all of Mr Vilnes ’ remaining submissions concerning other incidents at the Arctic Surveyor in 1977 were too vague as to what he considered had caused them and, in particular, to what extent they had been imputable to any of the specific shortcomings for which he criticised the State, to enable the Court to pronounce any view on the matter. This was the case, for instance, in respect of his account of the umbilical being pinned under a cement block; his being pulled by the umbilical as the vessel moved in a drift; the gas cut; and the vessel being damaged in a hurricane while he was undergoing saturation (see paragraphs 24 and 25 above). Nor is it clear to what extent Mr Vilnes had been personally affected by the various other deficiencies at the Tender Comet which he criticised in a general way (see paragraphs 31 to 37 above) and which the High Court noted (see paragraph 140 above) had been upheld. However, when viewed from the angle of the State ’ s positive obligations under Articles 2 and 8 of the Convention, the Court considers that Mr Vilnes ’ grievances under these headings are unfounded. ( e ) Partial conclusion 230. Thus far, the Court sees no reason for disagreeing with the findings of the national High Court and the Supreme Court in respect of Mr Vilnes and Mr Muledal (see paragraphs 129 to 140 and 146 to 160 above), which it finds equally valid for those five applicants who were awaiting the outcome of those proceedings. 231. What is more, when considering the regulatory framework referred to above, it ought to be relevant that it was possible under national law to establish liability to pay compensation, that Mr Vilnes and Mr Muledal had the merits of their compensation claims heard by the City Court, the High Court and the Supreme Court, and that this opportunity was also available to the remaining five applicants. Furthermore, regardless of the national law on compensation, the respondent State and Statoil had set up special compensation schemes under which divers were eligible to apply for substantial amounts of compensation, which all seven applicants did successfully (see paragraphs 17 to 19 above). 232. Having regard to all of the above considerations, the Court finds it established that the authorities of the respondent State went to some lengths in their efforts to secure the protection of the divers ’ safety and health by taking a wide range of measures, and that in so doing they acted in a manner that was consistent with their positive obligations not only under Article 2 but also Article 8 of the Convention. ( f ) As regards the issue of information on decompression tables 233. It remains, however, that the Court is less convinced that, as argued by the Government, the respondent State bore no responsibility for the fact that diving companies continued to use rapid decompression tables for as long as they did. It observes that the High Court found that Mr Vilnes ’ decompression sickness in 1977 had most likely been caused by the facts that the diving company had used too rapid a decompression table and there was no medical doctor who could assist him. This incident had probably been a strong contributory cause of his brain and spinal injuries (see paragraph 139 above). Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nesdal and Mr Jakobsen all submitted specialist medical statements indicating that they had suffered from various forms of bends (see paragraphs 39, 40, 43, 48, 51, 65 And 71 above). Mr Nygård, whose grievances mainly focussed on accidents and near ‑ accidents, as did the relevant medical expert statement, also described experiences of decompression sickness when seeking compensation at the national level (see paragraph 62 above), and the Court accepts his account. All seven applicants furnished evidence of disability, including medical evidence and the grant of disability pensions (see paragraphs 41, 46, 51, 53, 57, 62, 68, 70, 75 above). The Court, having regard to the parties ’ arguments in the light of the material submitted, finds a strong likelihood that the applicants ’ health had significantly deteriorated as a result of decompression sickness, amongst other factors. This state of affairs had presumably been caused by the use of too- rapid decompression tables. In this regard it cannot but note that, as observed by the Supreme Court, standardised tables had not been achieved until 1990, following a project financed by the Petroleum Directorate, and that decompression sickness had since then become an extremely rare occurrence. Thus, with hindsight at least, it seems probable that had the authorities intervened to forestall the use of rapid decompression tables earlier, they would have succeeded in removing more rapidly what appears to have been a major cause of excessive risk to the applicants ’ safety and health in the present case. 234. A preliminary question is whether it would be appropriate to review such an omission under Article 2 of the Convention. From the findings stated in paragraphs 224 to 230 above it follows that the applicants were not personally exposed to life-threatening experiences as a result of any shortcomings on the part of the respondent State. Since the core problem relates to the long-term effects on human health of the use of excessively rapid tables, not to sudden changes in pressure that could have lethal effects, it would seem more appropriate to deal with the matter from the angle of the State ’ s positive obligations under Article 8 of the Convention. 235. In this regard, the Court reiterates that since Guerra and Others, cited above, § § 57-60; developing López Ostra, cited above, § 55; see moreover McGinley and Egan, cited above, § § 98-104; and Roche, cited above, §§ 157-69 ), the Court has affirmed a positive obligation for States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives. In the Court ’ s view, this obligation may in certain circumstances also encompass a duty to provide such information, as can be inferred from the concluding paragraph 60 (concerning Article 8) in Guerra and Others, (cited above) and the affirmation of the “public ’ s right to information” with reference to the latter in the context of Article 2 (see Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132 ). It does not follow from the foregoing that this right ought to be confined, as suggested by the Government, to information concerning risks that have already materialised. In relation to Article 2 the Court has held that “among [the] preventive measures [to be taken] particular emphasis should be placed on the public ’ s right to information” (emphasis added here) (see Kolyadenko and Others, cited above, § 159, quoted at paragraph 220 above), and the position in relation to Article 8 can hardly be different. Nor does it follow that the right in question should not apply to occupational risks, another argument advanced by the Government which is not supported by the decision they cited (see paragraph 204 above). 236. In applying the above principles to the present case, the Court considers that the decompression tables used in diving operations may suitably be viewed as carriers of information which is essential in enabling the divers to assess the health risks involved, in the sense that diving carried out in accordance with the tables would be assumed to be relatively safe, whilst diving which did not respect minimum decompression standards would be deemed unsafe, a perception likely to be reinforced by diving operations being subject to prior administrative authorisation. Thus, the question arises whether, in view of the practices related to the use of rapid decompression tables, the divers received the essential information needed to be able to assess the risk to their health (see Guerra and Others, cited above, §§ 57 to 60, Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132 ) and whether they had given informed consent to the taking of such risks. This question, it is noted in passing, was among a very broad range of other issues raised in substance before the national courts, albeit without featuring at the centre of the national pleadings, unlike in the Convention proceedings. 237. The Court is not persuaded, as suggested by the Government, that by virtue of Article 121 of the 1967 Diving Regulation the authorities had already required the diving companies to provide information about the diving tables to be used, and that the companies had complied. As observed by the Supreme Court (while making reference to pp. 74-76 (section 5.7.4) of the Lossius Report), “the Labour Inspection Authority did not have access to tables for saturation diving and in late 1972 took the initiative to develop their own Norwegian tables” (see paragraph 147 (h) above). Moreover, in section 5.7.4 of the said report it was stated that “the Norwegian authorities gradually gained access to decompression tables for saturation diving [emphasis added]” (see paragraph 83 [14] above). The High Court noted that under certain provisions of the 1978 Regulation (Article 3.4 (1) in conjunction with Article 3(k) of its Appendix), the Petroleum Directorate could demand the production of the diving table used in a given diving operation (see paragraphs 128 and 168 above). The High Court commented in response to this that whether it was safe to use a table should have formed part of the basis for authorising a diving operation, and that it did not seem reassuring that tables had not been reviewed because employees of the Petroleum Directorate had not understood them (see paragraph 128 above). 238. It rather appears therefore that neither the Labour Inspection Authority nor the Petroleum Directorate required the diving companies to produce the diving tables in order to assess their safety before granting them authorisation to carry out individual diving operations. It seems that the diving companies were left with little accountability vis-à-vis the authorities, and were allowed to deal with the tables as their business secrets and thus enjoyed for a considerable period a wide latitude in opting for decompression tables that offered competitive advantages serving their own business interests. According to the Lossius Report ( section 5.7.4), regard for divers ’ health thus ran counter to strong commercial interests, and this issue was well known to the oil companies, the diving companies, divers themselves, diving doctors and the Norwegian authorities (see paragraphs 83 above). The relevant supervisory authorities were aware that the diving companies kept the tables confidential for competitive reasons (see paragraphs 111 to 112 of the Supreme Court judgment quoted at paragraph 147 ( k ) above). 239. In this connection the Court agrees with the view of the High Court, endorsed by the Supreme Court, that the assessment of what could be regarded as a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question (see paragraphs 129 to 130 and 147 (c) above). As regards the effects of diving, the Supreme Court reiterated that it had been known that sudden changes in pressure could have a great impact on the body (and, as pointed out by the High Court, those effects could in the worst cases be life-threatening) but there had been less knowledge about the long-term effects. At a consensus conference in Stavanger in 1983, American, British and French specialists in diving medicine had held that diving in accordance with the regulations had been safe. Others, including Norwegian researchers, had not been convinced of this (see paragraph 147 ( f ) above). At the consensus conference held ten years later at Godøysund the position was largely the same, with a leaning towards the possibility that diving under these conditions might have neurological and psychiatric after-effects. In 2002 the Lossius Commission had concluded that there was no clear evidence that could answer the question ( ibid. ). The Supreme Court noted that on the evidence the High Court had found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk- free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but one which had to be accepted. It had been treated with recompression and this treatment had been regarded as final ( NOU 2003 :5, p. 76) ( ibid. ). The Court sees no reason to call this assessment into doubt. In similar vein, it appreciates that scientific research into the matter not only required considerable investment but was also very complex and time ‑ consuming (see paragraphs 85 to 88 above). 240. At the same time, the Court finds it equally unquestionable that the prevailing view was also that decompression tables contained information that was essential for the assessment of risk to personal health involved in a given diving operation. That this was the raison d ’ etre of such tables was well illustrated, for example, by the letter of 10 July 1969 from the University of Newcastle -upon- Tyne to the Norwegian Labour Inspection Authority (see paragraph 81 above) and by the letter of 21 June 1984 from the Petroleum Directorate to the Diving Medical Advisory Committee (see paragraph 84 above). 241. In the last- mentioned document it was stated that the Petroleum Directorate had recently gone through most of the diving tables available and at that time used in the North Sea, and had found “the difference between the slowest and the fastest table disturbing. The difference in decompression time from 1, 000 feet [was] close to a week when comparing the fastest and the slowest table. In fact, the fastest table ... considered [was] faster than the Duke Emergency Decompression profile from saturation dive. This Duke table [was] in other companies used as the dive profile for aborted dives in serious emergencies. ... The ... Directorate [was] concerned about these differences and problems as they [were] considered to relate directly to the health and safety of divers ” (see paragraph 84 above). 242. However, it does not appear that the authorities took any measures with a view to bringing to the attention of the applicants, or to other divers like them, information enabling them to appreciate whether a table used in a diving operation was comparatively fast or whether it was conservative. As already mentioned above, a considerable period elapsed without the authorities requiring the diving companies to assume full openness about the tables. Nor does it seem that the authorities informed the applicants and other divers of their concerns about the differences between tables and the problems this posed with regard to divers ’ health and safety. 243. The Court has taken note of the Government ’ s argument that a diver would normally be acquainted with the table he would use in carrying out a diving operation for a given company, and might also be in a position to compare tables when working for other companies. However, whilst it cannot be excluded that some comparative information regarding decompression tables could have reached the applicants in this way, this would only have been at random and could hardly be regarded as sufficient for the purpose of enlightening them about the risks and to enable them to give an informed consent to the taking of such risks. 244. Having regard to all of the above-mentioned considerations, in particular the authorities ’ role in authorising diving operations and in protecting the safety of such operations as well as the lack of scientific consensus at the time regarding the long- term effects of decompression sickness and the uncertainty about these matters which existed at the time (see paragraph 147 ( h ) above), in order to minimise the possibility of damage a very cautious approach was called for (see paragraph 85 above). In the Court ’ s view it would therefore have been reasonable for the authorities to take the precaution of ensuring that the companies observe full transparency about the diving tables used and that the applicants, and other divers like them, receive information on the differences between tables, as well as on their concerns for the divers ’ safety and health, which constituted essential information that they needed to be able to assess the risk to their health and to give informed consent to the risks involved. This the authorities could have done when, for example, granting authorisation of diving operations and upon inspections. Had they done so they might conceivably have helped to eliminate sooner the use of rapid tables as a means for companies to promote their own commercial interests, potentially adding to the risks to divers ’ health and safety. By failing to do so the respondent State did not fulfil its obligation to secure the applicants ’ right to respect for their private life, in violation of Article 8 of the Convention. There has accordingly been a violation of this provision. ( g ) Recapitulation 245. In sum, the Court concludes that there has been a violation of Article 8 of the Convention on account of the failure of the respondent State to ensure that the applicants received essential information regarding decompression tables enabling them to assess the risks to their health and safety. Having reached this conclusion, the Court considers that no separate issue arises under Article 2 and sees no need for it to consider whether there has also been a violation of the latter in this respect. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 246. The first to fourth applicants complained of a violation of Article 3 of the Convention, which in so far as is relevant provides: “ No one shall be subjected ... to inhuman or degrading treatment .... ” 247. The Government contested that argument. A. Admissibility 248. Referring to its reasoning at paragraph 178 above, the Court does not find this complaint inadmissible on the ground of failure to exhaust domestic remedies under Article 35 § 1. It further finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. Accordingly, the first to fourth applicants ’ complaints under Article 3 must therefore be declared admissible. B. Merits 1. The applicants ’ submissions 249. Mr Vilnes maintained that in violation of Article 3 of the Convention the State had failed to protect him against inhuman and degrading treatment. He had been exposed to life-threatening risks, considerable pain resulting from decompression in accordance with tables “approved” by the State, continuously to noises, gases, internal humidity levels in decompression chambers reaching 90-100%, and pollution from oil and slag. He had not been offered adequate medical treatment after serious spinal decompression sickness and had been exposed to such stress levels that he had been diagnosed as suffering from PTSD (see paragraphs 39 to 41 above). In this connection the applicant referred to the various alternative measures the State could have taken to protect him, mentioned above in relation to his Article 2 complaint. 250. Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson complained that by failing to prevent the test diving in which they had participated from taking place (see paragraphs 109 to 112 above) and/or also by failing to establish an effective supervisory mechanism and/or stop the test diving when the divers had demanded withdrawal, the State had violated their right to protection against inhuman treatment under Article 3 of the Convention. They had not been adequately informed about the experiments and its consequences of the test diving, nor had this been carried out in accordance with their prior consent. 2. The Government ’ s submissions 251. The Government endorsed the Supreme Court ’ s findings (see paragraphs 159 and 160 above) that there had been no violation of Article 3 of the Convention. They did not deny that the applicants had suffered as a result of their diving, and that they had consequently found or were still finding themselves in unfortunate circumstances. They might also feel that they had been treated unfairly and unjustly by the Norwegian authorities in that they had not succeeded domestically with their Convention complaints. However, their situation could not sensibly be viewed as inhuman or degrading treatment as understood in the Court ’ s case-law. Whilst any “suffering or humiliation involved must ... go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment ( see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI ), the applicants had engaged in diving activities voluntarily and their employment ought to be regarded as “legitimate” for the purposes of the Court ’ s assessment. 252. In the event that Article 3 were to come into play, the Government were of the firm opinion that Norwegian authorities had established “a framework of law” that “provides adequate protection”, and, further, that the authorities did take “reasonable steps to avoid a risk of ill-treatment” ( see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III ) having regard to what the authorities knew and ought to have known. 3. The Court ’ s assessment 253. As far as Mr Vilnes ’ complaint is concerned, the Court refers to its findings above under Article 8 that the respondent State ’ s shortcomings were confined to a failure to provide access to information regarding risks involved in the use of rapid decompression tables (see paragraphs 244 and 245 above). In the light of the nature of this omission and the limited extent to which there was knowledge about the long-term effects of decompression sickness (see paragraph 239 above), the Court does not find that the respondent State can be held liable for inhuman and degrading treatment in respect of Mr Vilnes in breach of Article 3. 254. As regards the complaint under Article 3 of Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson, the Court notes that they relate to the same facts (concerning test diving) as those considered above in the context of Articles 2 and 8 above (see paragraphs 225 to 227 ) and, referring to its reasoning and conclusion above, it finds no violation of Article 3 in their case. 255. Accordingly, there has been no violation of Article 3 of the Convention. III. MISCELLANEOUS ALLEGATIONS BY MR VILNES OF VIOLATIONS 256. Mr Vilnes further alleged a breach of Article 14 of the Convention, arguing that as a diver he had not enjoyed the protection of the safety rules under the Employment Environment Act, unlike workers performing the same type of jobs onshore. This omission had put his life in danger. He also cited the procedural limb of Article 2, complaining that a police investigation, which had been hindered by the Petroleum Directorate, had not been completed. Later in the proceedings he also cited Articles 6, 11 and 13, arguing that the joinder in the national proceedings of his case to that of others, including Mr Muledal, had resulted in his being compelled to associate with them, being denied a fair hearing, and that no effective remedy had been available to him in this regard. 257. In respect of the Article 14 complaint, the Government disputed that Mr Vilnes had been subjected to any differential treatment or that any such could not be regarded as objectively justified (legitimate aim, proportionality ) bearing in mind the respondent State ’ s margin of appreciation. His situation had been too loosely identified for it to be encompassed by the Court ’ s approach to the term “other status” ( see Clift v. the United Kingdom, no. 7205/07, § § 56-59, 13 July 2010 ). The Government offered no comment on the complaints under Articles 6, 11 and 13. 258. The Court, agreeing with the findings of the Supreme Court (see paragraph 161 above), observes that Mr Vilnes ’ Article 14 complaint is not sufficiently substantiated to warrant an examination on the merits and should therefore be rejected as being manifestly ill-founded. 259. As regards Mr Vilnes ’ procedural complaint under Article 2, it does not appear that he raised this either expressly or in substance before the Supreme Court, for which reason he failed to exhaust domestic remedies. His complaints under Articles 6 and 13 were raised in substance only in his comments of 29 January 2012 to the Government ’ s observations, more than six months after the impugned joinder and the final national decision in his case. 260. It therefore follows that these complaints are inadmissible under Article 35 §§ 1 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 261. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage (a) The applicants ’ claims 262. The applicants claimed the following sums in respect of pecuniary damage: 1) Mr Vilnes: 30, 278, 358 Norwegian kroner (NOK) (approximately 3,984,000 euros (EUR) ); 2) Mr Muledal: NOK 9,048,599 (approximately EUR 1,191,000); 3) Mr Lindahl: NOK 7, 848,430 (approximately EUR 1,033,000); 4) Mr Sigurdur P. Hafsteinsson: NOK 9,018,538 (approximately 1,187,000 EUR ); 5) Mr Nygård : NOK 8,792,178 (approximately EUR 1,157,000); 6) Mr Nesdal : NOK 7,409,777 (approximately EUR 975,000); 7) Mr Jakobsen : NOK 10,241,492 (approximately EUR 1,348,000). 263. Mr Vilnes ’ s claim represented his loss of earnings per year, with interest, for twenty-eight years, up to the retirement age of 67 ( using his income of NOK 265,500 for 1978 as a starting point and increasing the annual figure in accordance with nominal wage growth ). This was a hypothetical income based on his probable natural career without the injuries. He agreed that deduction should be made of the NOK 3,613,657 (approximately EUR 476,000) he had received under the various special compensation schemes (see paragraph 41 above). 264. Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen explained that the above-mentioned amounts had been calculated on the basis of deduction being made of the amounts that they had received in compensation under the said compensation schemes, except that the NOK 200,000 received in ex-gratia compensation ought not be taken into account (see paragraph 47, 52, 58, 63, 69, and 76 above). As a result of diving in the North Sea they had sustained injuries and health damages. Some had been able to do other work for some years until their health problems had manifested themselves in an occupational disability, while others had never worked again. However, all of them had suffered major loss of income compared to what they would have earned had they stayed healthy and continued diving in the North-Sea until the age of 55. Thereafter they would have continued in other petroleum - related occupations, such as for example as diving supervisor or superintendent, a common career path, until the regular retirement age of 67. Any benefits provided by the State, such as sickness and disability benefits, had been deducted from their claims. In addition they claimed interests. (b) The Government ’ s submissions 265. The Government pointed out that the general tenor of the applicants ’ view was that they had sustained injuries and damage to their health as a result of diving in the North Sea. That was not the same, however, as demonstrating to the Court ’ s satisfaction that their health issues were the result of a violation of the Convention. 266. The Government maintained that the applicants had not furnished the Court with requisite evidence that there was indeed a causal link between the financial loss for which compensation was now being sought and the alleged breaches by the Norwegian authorities. Their health problems might be the result of their diving activities carried out on the Norwegian Shelf not involving rapid tables, or of activities as divers outside the jurisdiction of the Norwegian authorities, or they could be the result of the applicants ’ taking risks which Norwegian authorities could not sensibly have been able to forestall. 267. On this basis the Government asked the Court to reject the applicants ’ pecuniary damage claims. 268. In any event, the sums received by the applicants in ex gratia compensation from the Norwegian authorities and from Statoil ought to be deducted if the Court made an award under Article 41, and the sums claimed were excessive. (c) The Court ’ s assessment 269. The Court reiterates that the well - established principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he or she would have enjoyed had the violation of the Convention not occurred ( see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002 ‑ IV, and Muñoz Díaz v. Spain, no. 49151/07, § 85, ECHR 2009 ). Furthermore, the indispensable condition for making an award in respect of pecuniary damage is the existence of a causal link between the damage alleged and the violation found (see Nikolova v. Bulgaria [GC], no. 31195/96, § 73, ECHR 1999-II, and Muñoz Díaz, cited above ). 270. However, bearing in mind its findings above, regarding notably the prevailing perceptions and lack of precise knowledge at the material time about the possible long- term effects of decompression sickness, the Court is not able to speculate on what the applicants ’ position would have been had the violation found of Article 8 of the Convention not occurred. The evidence before it does not show a sufficient causal link between the respondent State ’ s failings as described in paragraph 244 above and the applicants ’ losses in past and future earnings. In any event, even assuming that parts of the losses claimed are attributable to decompression sickness, the state of the evidence is not such as would enable the Court to make an equitable award under the Convention that exceeds the amounts that they have already received under the various national compensation schemes and which would have to be deducted from any such award. It therefore rejects the applicants ’ claims under this heading. 2. Non-pecuniary damage (a) The applicants ’ claims 271. In respect of non-pecuniary damage Mr Vilnes claimed NOK 5,000,000 (approximately EUR 658,000) and the other six applicants each claimed NOK 64,000 (approximately EUR 8,400), the latter referring to Roche (cited above, § 179 ) where the Court had awarded EUR 8,000 in comparable circumstances. The applicants maintained that they had suffered feelings of frustration, uncertainty and anxiety. (b) The Government ’ s submissions 272. The Government asked the Court to reject the applicants ’ claim for compensation for non-pecuniary damage. The latter had not furnished the Court with any documentary evidence that they had suffered feelings of frustration, uncertainty and anxiety as a result of any breach of the Convention by the Norwegian authorities. The amount claimed by Mr Vilnes, in particular, was clearly excessive. In any event, having regard to the amounts already granted to the applicants by way of compensation under the special compensation schemes, a finding of violation by the Court would constitute adequate just satisfaction for the purposes of Article 41. (c) The Court ’ s assessment 273. The Court considers that the applicants must all have experienced psychological problems on account of anguish and distress as a result of the violation found of the Convention and that this finding will not suffice as “just satisfaction” for the purposes of Article 41. The Court notes that an amount of NOK 200,000 (approximately EUR 26,000 ) had already been granted to each of the applicants in ex gratia compensation for non ‑ pecuniary damage by Parliament or the Special Compensation Board (see paragraphs 42, 47, 52, 58, 63, 69, and 76 above). Deciding on an equitable basis, it awards each applicant EUR 8,000 under this heading, plus any tax that may be chargeable on that amount. B. Costs and expenses 274. Mr Vilnes claimed reimbursement of legal costs and expenses totalling NOK 664,128 (approximately EUR 87,000 ), in respect of the following items: (a) NOK 526,190 for his lawyers ’ work in the proceedings before the Court (mostly at the rate of NOK 1,300 per hour); ( b ) NOK 131,547 for value- added tax (“VAT”) in respect of the above; (c) NOK 6,391 for expenses incurred for travel and accommodation in connection with the oral hearing before the Court; 275. The remaining six applicants sought reimbursement of legal costs and expenses totalling NOK 1,280,868 (approximately EUR 169,000 ) in respect of the following items (all inclusive of VAT) : (d) NOK 815,816 for the lawyers ’ work (538 hours) before the Court until 4 October 2010; (e) NOK 120,000 for their remaining work thereafter, of sixty-five hours before the Court; (f) NOK 345,052 incurred by the Offshore Divers ’ Union before the national courts. 276. The Government argued that the applicants ’ claims for reimbursement for legal costs were considerable and excessive, not least having regard to the fact that the very same claims of Convention breaches had been made before domestic courts, including the Supreme Court, and also to the fact that the individual plaintiffs in the domestic proceedings had been granted free legal aid. The amounts now sought before the Court were neither reasonable nor necessarily incurred. 277. The Court reiterates that, according to its case-law, an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. 278. In the present case, regard being had to the documents in its possession and the above criteria, the Court first notes that only part of the costs was necessarily incurred in order to obtain redress for the matter found to constitute a violation of the Convention. 279. Accordingly, as regards Mr Vilnes ’ claim, the Court considers that items (a) and (b) should only be reimbursed in part, whilst item (c) should be refunded in its entirety. Making an assessment on an equitable basis, the Court awards him EUR 40,000, plus any tax that may be chargeable on that amount. 280. Likewise, as regards the other six applicants, items (d) and (e) should be reimbursed only in part. The Court rejects item (f) since it does not concern a party to these proceedings nor costs that appear to have been actually and necessarily incurred by the applicants in order to obtain redress for the violation before the domestic courts. Making an assessment on an equitable basis, the Court awards the other six applicants jointly EUR 50,000 in respect of items (d) and (e), plus any tax that may be chargeable on that amount C. Default interest 281. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 of the Convention, on account of the failure of the Norwegian authorities to ensure that the applicants received essential information enabling them to assess the risks to their health and lives resulting from the use of rapid decompression tables. In the light of the authorities’ role in authorising diving operations and protecting divers’ safety, and of the uncertainty and lack of scientific consensus at the time regarding the long-term effects of decompression sickness, the Court found in particular that a very cautious approach had been called for. It would have been reasonable for the authorities to take the precaution of ensuring that companies observed full transparency about the diving tables and that divers received the information on the differences between the tables and on the concerns for their safety and health they required to enable them to assess the risks and give informed consent. The fact that these steps were not taken meant that Norway had not fulfilled its obligation to secure the applicants’ right to respect for their private life. The Court further held that there had been no violation of Article 2 (right to life) or Article 8 of the Convention as regards the remainder of the applicants’ complaints about the authorities’ failure to prevent their health and lives from being put in jeopardy, and that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention.