L.C.B. v. THE UNITED KINGDOM
Doc ref: 23413/94 • ECHR ID: 001-45780
Document date: November 26, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23413/94
L.C. B.
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 26 November 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-14) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 11-14) . . . . . . . . . . . . . . . . . . . . . 2
II. ESTABLISHMENT OF THE FACTS
(paras. 15-47). . . . . . . . . . . . . . . . . . . . . . . . 3
B. Relevant background
(paras. 15-42) . . . . . . . . . . . . . . . . . . . . . 3
A. The particular circumstances of the case
(paras. 43-47) . . . . . . . . . . . . . . . . . . . . . 8
III. OPINION OF THE COMMISSION
(paras. 48-72). . . . . . . . . . . . . . . . . . . . . . . .10
A. Complaints declared admissible
(para. 48) . . . . . . . . . . . . . . . . . . . . . . .10
B. Points at issue
(para. 49) . . . . . . . . . . . . . . . . . . . . . . .10
C. As regards Articles 2 and 3 of the Convention
(paras. 50-70) . . . . . . . . . . . . . . . . . . . . .10
CONCLUSIONS
(paras. 71-72) . . . . . . . . . . . . . . . . . . . . .14
CONCURRING OPINION OF MR. I. CABRAL BARRETO . . . . . . . . . . . .15
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .16
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights and of the procedure before the
Commission.
A. The application
2. The applicant is a British citizen, born in 1966 and resident in
Carntyne. She was represented before the Commission by
Mr. Ian Anderson, an advocate practising in New York and Scotland.
3. The application is directed against the United Kingdom. The
respondent Government were represented by Ms. Susan Dickson, Agent,
Foreign and Commonwealth Office.
4. The applicant is the daughter of a serviceman who participated
in the United Kingdom's nuclear test programme at Christmas Island and
she was diagnosed with leukaemia when she was four years old. The case
concerns an alleged failure to inform and advise the applicant's
parents about her father's participation in the test programme and
about the consequent risk to her health. The applicant invokes
Articles 2 and 3 of the Convention.
B. The proceedings
5. The application was introduced on 21 April 1993 and was
registered on 7 February 1994.
6. On 9 January 1995 the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicant's complaints under Articles 2 and 3 of the Convention.
7. The Government's observations were submitted on 29 May 1995 after
two extensions of the time-limit fixed for this purpose. The applicant
replied on 29 August 1995 after one extension of the time-limit. On
27 October 1995 the Commission granted the applicant legal aid for the
representation of her case.
8. On 28 November 1995 the Commission declared admissible the
applicant's complaints under Articles 2 and 3 of the Convention and
declared inadmissible the remainder of the application.
9. The text of the Commission's decision on admissibility was sent
to the parties on 30 November 1995 and they were invited to submit
further observations. The Government submitted observations dated
1 February, 4 June, 2 August and 11 October 1996 and the applicant
submitted observations on 29 January, 1 April, 3 May, 17 June,
24 September and 21 November 1996.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
J.-C. GEUS
M.P. PELLONPÄÄ
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
12. The text of this Report was adopted on 26 November 1996 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto. The full text of the parties' submissions, together
with the documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. Relevant background
1. Atmospheric Nuclear testing programmes
15. Between 1952 and 1967 the United Kingdom Government carried out
a number of atmospheric tests of nuclear weapons in the Pacific Ocean
and Australia.
16. Over 20,000 servicemen participated in these tests. The tests
included seven detonations at Maralinga, south Australia in 1956 and
1957 and six detonations at Christmas Island on 8 November 1957,
28 April 1958, 22 August 1958, 2 September 1958, 11 September 1958 and
23 September 1958. The weapons detonated in 1958 at Christmas Island
were more powerful than those detonated at Maralinga and many times
more powerful than those detonated at Hiroshima and Nagasaki. All
devices in the megaton range (Operations Grapple X, Grapple Y and two
in the Grapple Z series) were detonated over the sea off the south-
eastern peninsula of Christmas Island and the two Grapple Z devices in
the kiloton range were detonated over the south-eastern peninsula. Many
of the servicemen who participated in the tests were lined-up in the
open air in light clothing at the moment of the detonations, ordered
to look away from the direction of the initial flash and then ordered
to turn around in the direction of the blast.
17. The United States also ran a test programme in the Pacific which
included the detonation of a hydrogen bomb at Bikini Island in 1954.
2. Documents submitted in support of the applicant's submission as
to one of the reasons for the United Kingdom's nuclear test
programme
18. A document headed "Atomic Weapon Trials", marked "Top Secret" and
dated 20 May 1953, of the Defence Research Policy Sub-Committee of the
Chiefs of Staff Committee states:
"... Many of these tests are of the highest importance to
Departments... The army must discover the detailed effects of
various types of explosion on equipment, stores and men with and
without various types of protection...".
19. On 12 March 1984 a debate took place in the House of Commons on
the United Kingdom's nuclear test programme. The content of the above
document was raised and the Minister for Defence Procurement responded
by stating that what happened was that the blast and thermal and
radiation consequences of a nuclear explosion on man were determined
by taking measurements of the flux level of various protected and
unprotected positions using instruments. The consequences of those flux
levels for man would then be calculated. The Minister also confirmed
that, during the tests in Maralinga and in order to allow servicemen
to experience the effects of nuclear explosions at ranges closer than
previously allowed, 200 United Kingdom servicemen were stationed at
about eight kilometres from the epicentres of the detonations.
20. A memorandum headed "Atomic Weapons Trials and Training" and
dated 29 November 1955 noted that during the 1957 trials the
Royal Air Force "will gain invaluable experience in handling the
weapons and demonstrating at first hand the effects of nuclear
explosions on personnel and equipment". On 22 December 1955 the
Director of the Atomic Weapons Research Establishment wrote to the
Ministry of Defence in relation to the supply to a similar Australian
body of filter pieces which measured the fallout from the tests in
Australia and he recommended, if Australia asked to examine the
filters, that pieces of the filters be supplied but "that we wait a few
days so that some of the key isotopes have decayed a good deal".
21. A War Office memorandum dated 19 November 1957 and headed "UK
personnel for duty at Maralinga" began by stating that "All personnel
selected for duty at Maralinga may be exposed to radiation in the
course of their military duties". The memorandum continued by referring
to initial medical examinations including detailed blood count analysis
to determine suitability for duty prior to duty in Maralinga together
with blood analysis on return from duty. It concluded that "A steady
and progressive fall in successive blood counts or a fall below the
warning level indicates that the individual must be removed from all
contact with radioactivity until he has been found fit to return to
duties involving exposure to radioactivity".
22. On 15 July 1958, during a meeting of the Atomic Weapons Research
Establishment to discuss the issue of blood monitoring for leukaemia
in 4500 servicemen about to depart for Christmas Island, it was agreed
that only civilian personnel would be tested prior to departure since
a serviceman found to be healthy before the test who contracted
leukaemia afterwards "may have a case for arguing that the test was a
cause".
23. A Ministry of Defence file, dealing with prospective blast
effects of the Grapple Y detonation (at Christmas Island), gave details
of the positions of certain categories of servicemen, blast effects,
thermal radiation, radiation effects and radiation fallout and stated
that personnel in the main camp should be paraded as during a previous
detonation in late 1957 with the addition of protective clothing
bearing in mind that "thermal radiation may be expected from all angles
due to scatter". It was emphasised that in the event of the expected
yield being obtained or increased there "will almost certainly be, in
addition to considerable material damage, casualties to individuals and
this should be taken into account."
3. Medical Research Council
24. It was reported in leading medical journals as early as 1946 that
exposure to radiation would inevitably have genetic effects on the
relevant individuals. A report headed "Genetic effects of radiation
with reference to man" of the Medical Research Council ("MRC") dated
6 February 1947 stated that "all quantitative experiments show that
even the smallest doses of radiation produce a genetic effect, there
being no threshold dose below which no genetic effect is induced".
25. In March 1955 the then Prime Minister (Sir Anthony Eden)
requested the MRC to appoint an independent committee to report to
Parliament on the medical and genetic effects of radiation. In June
1956 the MRC committee so reported and commented that exposure to
ionising radiation, however small, could increase the frequency risk
of gene mutation in the reproductive cells, noting that from the film
badges of employees of the Atomic Energy Authority it was possible to
calculate accurately "the doses received by such employees in relation
to their expectation of parenthood" and commenting that the changes in
the sex ratio in the children of those exposed to radiation might be
due to genetic damage.
26. Subsequent to a progress report of the MRC committee being shown
to the Prime Minister, a letter was sent from Downing Street dated
16 November 1955 reporting the Prime Minister as having commented on
such consequences as being "a pity but we cannot help it".
27. A telex dated July 1956 discussed the brief of the Director of
the Atomic Weapons Research Establishment on a recent MRC committee
report pending his arrival on Christmas Island and stated as follows:
"We do not want to release any statement on genetic effects or
on radioactivity or strontium pending the arrival of
Director>. If you have to, a safer interpretation of the MRC
report in the last sentence of paragraph 4 would be, `has not
shown an increase' rather than `shows an increase'." (emphasis
added)
28. The MRC committee submitted an updated report in 1960 emphasising
that the research conducted gave no grounds for believing that there
was a threshold below which no increase in mutation occurs.
4. The Royal Commission into British Nuclear Testing in Australia
29. The Australian Royal Commission was appointed in July 1984 by the
Queen to enquire into the conduct of the Australian tests. That
Commission was furnished with documentation including statements, plans
and reports covering the planning, execution and results of some of the
test activity in Australia, which documents were also transferred at
the same time (mid-1980's) to the United Kingdom Public Records Office
under reference number DEFE16.
30. The Commission's report was published in 1985. It concluded that
in many respects the information furnished by the United Kingdom
Government to the Australian Government in relation to the test
programme was inadequate. Various specific tests and projects were
criticised as being carried out in an inappropriate and negligent
manner causing danger to both civilian populations and military
personnel. For example, the Royal Commission found that the safety
precautions against radiation exposure employed at Maralinga, south
Australia, demonstrated, "ignorance, incompetence and cynicism" by the
United Kingdom for the safety of persons in the vicinity of those
tests. It was also concluded that there had been some serious
departures from the contemporary radiation protection policies and
standards during the test programme. It was accepted that exposure to
radiation at certain dose levels is associated with increased risk of
cancer and genetic effects. While increased frequency of genetic effect
had not been demonstrated in any irradiated human population (and
noting that such a study would not be practicable), it was accepted
that such effects do occur. By reason of the major detonations and the
deposition of fallout across Australia, it was thought probable that
cancers, which would not otherwise have occurred, had been caused in
the Australian population.
31. The Commission, accordingly, recommended, inter alia, that the
benefits of certain compensation legislation be extended to include not
only military personnel but also civilians who were at the test sites
at the relevant time. By agreement dated 10 December 1993 the United
Kingdom agreed to pay £20 million to the Government of Australia in
settlement of all claims made by any persons (excluding United Kingdom
test participants) for injuries connected with the test programme.
5. Marshall Islands Nuclear Claims Tribunal
32. This tribunal was set up in 1987 to consider claims from
residents of the Marshall Islands about the United States trial
detonations at Bikini Island. By 31 December 1993 the tribunal had
admitted 676 claims in respect of cancer related illnesses suffered by
the inhabitants of the Marshal Islands. The closest of the Marshal
Islands was 120 miles (192 kilometres) from Bikini (Rongelap), four of
the relevant islands were over 300 miles (580 kilometres) from Bikini
and two were over 500 miles (800 kilometres) from Bikini. The total
gross compensation awarded by the tribunal as at 31 December 1993 was
$25,225,500.00.
6. Relevant statistical studies and reports
(a) The 1988 and 1993 reports of the National Radiological Protection
Board ("NRPB")
33. Due to increasing concern expressed in the media about early
deaths of test veterans, the Ministry of Defence commissioned the NRPB
(in conjunction with the Imperial Cancer Research Fund) to carry out
a study into mortality and cancer rates amongst the test veterans. The
NRPB compared the mortality and cancer rates of a body of test veterans
(21,358 persons) with a control group (army personnel who passed
similar medical tests on entry into service but who did not participate
in the testing).
34. During the House of Commons debate on 12 March 1984 on the United
Kingdom nuclear test programme, a Member of Parliament read a letter
received that day from the Joint Committee on the Medical Effects of
Nuclear Weapons which confirmed that the NRPB's expertise was in
monitoring radiation exposure not in carrying out epidemiological
health surveys and, furthermore, expressing surprise that the
Government entrusted the investigation into its own liability to a
Government body when other bodies, whose impartiality could not be
reasonably questioned, were available to do the work. The Minister for
Defence Procurement responded by referring to a previous discussion in
the House of Commons about the independence and suitability of the NRPB
and indicating that he had hoped that the relevant Members of
Parliament who had raised the questions would be prepared to accept a
body with the experience of the NRPB as an acceptable assessment
source.
35. The NRPB report concluded that participation in the nuclear test
programme did not have a detectable effect on the test veterans'
overall expectation of life nor on their total risk of developing
cancer. However, the test veterans demonstrated a higher rate of
leukaemia and multiple myeloma than the control group. As a result, the
Department of Social Security ("DSS") subsequently awarded war pensions
to those presenting these two conditions.
36. In order to clarify the situation, a follow up report was
completed extending the period of review over seven more years so that
almost double the number of deaths were available for analysis. The
NRPB again concluded that there had been no detectable difference in
the veterans' expectation of life nor as regards their risk of
developing cancer or other fatal diseases. The suggestion from the
previous report that participants may have experienced small hazards
of leukaemia and multiple myeloma, was found not to be supported by the
additional data used for the second report and the excesses observed
in the first report were reported as being a chance finding, although
the possibility that test participation may have caused an additional
risk could not be completely ruled out.
(b) The report by personnel of the Atomic Weapons Establishment
("AWE")
37. Personnel with the AWE produced a report which described the
environmental monitoring programme at Christmas Island during the test
detonations and the results obtained. The report, which is stated to
not necessarily represent the official views of the AWE, is marked
"unclassified" and is dated October 1993. It concluded that there was
no detectable increase in radioactivity on land, in the sea or in the
air pursuant to the Christmas Island testing. It also concluded that
there was therefore no danger to personnel from external radiation nor
from inhalation and ingestion of radioactivity.
(c) The report of the British Nuclear Test Veterans Association
("BNTVA")
38. The BNTVA is a voluntary group founded in 1983 to campaign for
recognition and compensation for those who participated in the United
Kingdom's nuclear test programme and who as a consequence were
allegedly exposed to radiation. Its members number approximately 3000
and include British ex-servicemen, who claim that they were
deliberately exposed to ionising radiation, and their children who
claim to be genetically impaired. Further to a request by an adviser
of the Defence Select Committee, a statistical report entitled
"Radiation Exposure and Subsequent Health History of Veterans and their
Children" was published by the BNTVA in or about February 1992. It was
based on a survey of the members of the BNTVA and it concluded that 1
in 5 of its members suffered from cancer and that 1 in 4 veterans had
children who suffered from defects attributable to genetic origin.
(d) The Neel reports (1981 and 1990)
39. Following the bombing of Nagasaki and Hiroshima the United States
collected data on child births (between 1947 and 1951) and on survivors
(for many years after the bombings). These data formed the basis for
the 1981 and 1990 Neel reports. The purpose of the data collection was
to study the effects of the radiation on survivors and the genetic
consequences on children conceived thereafter. There were difficulties
in collecting the data from a largely uncooperative population and the
studies in relation to the children were, according to the applicant,
inconclusive.
(e) The Gardner report (1990)
40. In 1983 the United Kingdom set up an independent committee to
study the tenfold incidence of leukaemia in Sellafield, a town in the
United Kingdom in close proximity to a nuclear power station. In 1984
the committee reported that the disease was more common than could be
explained by chance and that external radiation from the plant was too
low to cause the leukaemia excess. Thereafter a member of that
committee, Professor Gardner, and others conducted three
epidemiological studies which concluded in 1990 that the increased
incidence of leukaemia among children near Sellafield was associated
with parental employment and the recorded doses of external whole body
penetrating radiation during work at the plant before conception.
41. Subsequently, the children of two former workers at the nuclear
plant took an action for damages as their fathers had received
significant doses of radiation as a result of their work. The children
had contracted cancer (acute lymphatic leukaemia and non-Hodgkins
lymphoma) and claimed that this was the result of paternal
preconception irradiation (Reay and Hope v. British Nuclear Fuels
[1994] 5 Med LR 2). The action was unsuccessful, the court finding
that, on the balance of probabilities, the available scientific
evidence was insufficient to demonstrate that the children's cancer was
caused by their fathers' exposure. The court found, as regards the
Gardner report, that it conflicted with the Neel studies and that it
required further confirmatory studies.
(f) Sir Richard Doll review paper (1993)
42. Sir Richard Doll, a leading British epidemiologist, published a
paper in the Journal of Radiological Protection in 1993 which,
according to the Government, effectively dismissed Professor Gardner's
conclusions.
B. The particular circumstances of the case
43. The applicant's father was a conscript in the Royal Air Force and
he participated in the United Kingdom's nuclear test programme at
Christmas Island in 1957 and 1958. During that time he was ordered to
line up on a beach in light clothing during the detonations at
Christmas Island, to face away from the detonation while covering his
eyes and to face the detonation site immediately after the detonation.
44. In or about 1970 attempts were made by the applicant's doctors
to establish the cause of an illness suffered by the applicant by
examining her family background. Her parents were required to supply
details of their medical history, as well as that of the immediate
family and grandparents. When it was clear that there was no history
in the family of the applicant's illness, enquiries were made about the
applicant's parents' occupations. The applicant claims that those
enquiries stopped as soon as the applicant's father indicated that he
was in the Royal Air Force on Christmas Island during the United
Kingdom's nuclear test programme. In or around late 1970 the applicant
was admitted to Stobhill hospital with Acute Myeloid Leukaemia, which
is a cancerous disease of the organs which manufacture blood. The
applicant has submitted a copy of her intake summary to Stobhill
hospital which, under the heading "Summary of Possible Causative
Factors", records "Father - exposed to radiation".
45. The applicant received chemotherapy treatment which lasted until
she was ten years old and she missed half of her primary school
education because of her illness and associated treatment. She was also
unable to participate in sports or other normal childhood activities.
46. In December 1992 the applicant became aware of the contents of
the BNTVA report and of the connection referred to therein between her
illness and her father's participation in the test programme. The
applicant is a member of the BNTVA.
47. The applicant still has regular medical check-ups and submits
that she lives under the threat of recurring serious illness.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
48. The Commission has declared admissible the applicant's complaints
about a failure to inform and advise her parents as to her father's
alleged exposure during the United Kingdom test programme at Christmas
Island and as to the consequent risk to her health.
B. Points at issue
49. The points at issue are whether there has been:
- a violation of Article 2 (Art. 2) of the Convention; and
- a violation of Article 3 (Art. 3) of the Convention.
C. As regards Articles 2 and 3 (Art. 2,3) of the Convention
50. Articles 2 and 3 (Art. 2,3) of the Convention, insofar as
relevant, read as follows:
Article 2 (Art. 2)
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally ... "
Article 3 (Art. 3)
"No one shall be subjected to ... inhuman or degrading treatment
... "
51. The applicant submits that her father was deliberately exposed
to radiation during his participation in the United Kingdom's nuclear
test programme at Christmas Island.
52. In this respect, she refers, in the first place, to the line-up
procedure used at the time of the detonations which she submits took
place on four occasions and to her father's participation in "clean-up"
operations at the site of those detonations. The applicant questions
how beach front parades in light clothing and the order to face the
detonation site immediately thereafter could possibly have been
designed as a safety measure for servicemen. She submits that adequate
safety measures, in those circumstances, would have required shielding
(as opposed to exposure) behind properly designed embankments, in low
lying areas or in properly constructed buildings with protective
clothing, eye protection and film badges.
53. Secondly, the applicant also submits that various memoranda
indicate this intention on the part of the United Kingdom Government
(see paragraphs 18-23 above). She submits that the explanations of
those memoranda by the Government (particularly in relation to the
memorandum of 20 May 1953) are unconvincing. She notes the lack of
elaboration by the Government of the use of "dummies" to which they
refer and submits that the use of dummies could not possibly be of any
significant use in terms of the impact of radiation on the human body.
54. As a result, the applicant argues that her father was exposed to
dangerous doses of radiation during the test programme. She submits
that he suffered skin blistering and bouts of nausea immediately after
the detonations, which ailments were treated at the military medical
facility in Christmas Island. The applicant submits that one of these
detonations (8 November 1957) was below the expected altitude and blew
back onto Christmas Island with sufficient force to overturn tents,
machinery and personnel. She also submits that the Grapple Y detonation
(28 April 1958) was also well below the expected altitude and took
place in unpredictable weather conditions so that shortly after the
detonation torrential rain drenched servicemen including her father.
Since no film badges were issued, she challenges the Government's
statement, that her father's dose of radiation is effectively assessed
at zero, as bald.
55. She challenges in some detail the NRPB reports. The applicant
notes that, while the 1985 NRPB results demonstrated that levels of
leukaemia and multiple myeloma were three times higher in the veterans'
group and that leukaemia was a "cancer most closely associated with
ionising radiation", the study concluded that this difference was due
to the extraordinarily low incidence of those diseases in the control
group, which conclusion would seem to undermine the very rationale of
using a control group. In addition, the NRPB did not have access to
certain documents. In relation to the 1993 survey, the applicant
questions in detail the basis for the inclusion and exclusion of
certain servicemen in and from the study. She also challenges the
sufficiency of the information on participants with cancer and the
conclusion of the report in relation to the incidence of leukaemia in
veterans. The applicant submits that the report's conclusions contain
inferences which contravene the comparison hypotheses upon which the
studies were based and that many experts have criticised the reports.
Finally the applicant questions the suitability and independence of the
NRPB referring to the letter read by a Member of Parliament on
12 March 1984 to the House of Commons from the Joint Committee on the
Medical Effects of Nuclear Weapons and noting that all information in
terms of the test veterans and the control group was supplied to the
NRPB by the Ministry of Defence.
56. Finally, the applicant refers in detail to, inter alia, the
criticisms by the Australian Commission of the United Kingdom
Government's conduct of the testing in Australia, to the consequent
agreement by the United Kingdom Government to pay compensation to the
Australian Government and to the results of the Marshall Islands
Nuclear Claims Tribunal which related to detonations much farther away
from the successful claimants than the Christmas Island detonations.
57. The applicant goes on to submit that her illness was caused by
her father's exposure and that the relevant authorities were aware of
at least a real risk of such consequences for her when the Christmas
Island test programme was carried out and thereafter. She refers, inter
alia, to the work of the Medical Research Council and its committees,
the BNTVA report and the Gardner report.
58. On this basis the applicant argues that the United Kingdom
Government should have informed and advised her parents as to the
nature and impact of her father's participation in the United Kingdom
test programme at Christmas Island and as to the consequent risk to her
health so that she would have received earlier monitoring, diagnosis
and treatment. In that way, the fatal nature of the disease could have
been avoided. In addition, the course of the illness would have been
rendered less serious and her physical and consequent psychological
suffering reduced. Furthermore, the fact that no such information or
advice has been forthcoming in itself caused the applicant much
uncertainty and anxiety. The lack of information or advice given to her
parents and the consequences of that failure for the applicant amount,
according to the applicant, to a violation of Articles 2 and 3
(Art. 2,3) of the Convention.
59. The Government submit that the purpose of the detonations was not
to test the effect on men of radiation but rather to test the nuclear
devices themselves. The applicant's father participated in the test in
carrying out duties on Christmas Island in support of those tests.
60. The Government do not contest that he would have been ordered to
line up on the beach and to face away from the initial detonation
covering his eyes and to turn around immediately afterwards to face the
detonation site. This procedure was a safety measure to ensure that the
servicemen were together at a suitable location and did not look
directly at the blast as this would have harmed their eyes. As regards
the Chief of Staff's memorandum dated 20 May 1953, the Government
submit that that memorandum does not indicate that the effects of
radiation on servicemen were to be established by exposing those
persons to radiation but rather a desire to establish, through the use
of, for example, dummies and radiation level recordings, the likely
effects on servicemen. As to the other memoranda, the Government deny
that they support the applicant's allegations and submit that those
memoranda have been taken out of context by the applicant.
61. Furthermore, the Government, while accepting that the applicant's
father was not issued with a film badge for monitoring external
radiation, submit that the applicant's father worked as a catering
assistant, that his job would not have involved significant levels of
radiation and that his dose is assessed at effectively zero. In this
respect the Government submit that if servicemen were exposed as the
applicant submits, an overall excess of cancer would be expected among
those servicemen. However, the conclusions of the statistical surveys
and analyses conducted by the NRPB (a body independent of the Ministry
of Defence) show no such increased mortality or cancer rate in the test
participants. In addition, it is submitted that it would have been
impossible to give persons such significant doses of radiation (to
produce the immediate after-effects the applicant alleges) without
killing them with the blast and heat from the weapons and they refer
to a publication in this respect ("The effects of Nuclear Weapons" by
Glasstone and Dolan, Third Edition published in 1977).
62. Moreover, the Government argue that even if the applicant's
father was exposed as she submits, there is no conclusive evidence that
this causes a predisposition to certain illnesses in children and in
this respect the Government rely on the conclusions in the 1990 Neel
report, a 1993 paper published by a leading epidemiologist
Sir Richard Doll and the decision of the court in the case of Reay and
Hope v. British Nuclear Fuels (loc. cit.). The Government add that the
BNTVA's report does not appear to be a peer reviewed published
scientific paper.
63. In addition, the Government submit that while there may be an
obligation under Article 2 (Art. 2) of the Convention to take
appropriate steps to safeguard life, there is no evidence that the
Government ought reasonably to have been aware (between 1966 and 1970)
or thereafter that there is any increased risk of infant illness due
to parental exposure to radiation. There was, therefore, no obligation
on the Government to warn the applicant's parents in relation to
effects of the applicant's father's exposure. Furthermore and as
regards Article 3 (Art. 3) of the Convention, the Government, relying
on the Ireland v. the United Kingdom case (Eur. Court HR, Ireland
v. the United Kingdom judgment of 18 January 1978, Series A no. 25),
argue that the applicant in the present case cannot show any direct
treatment of an inhuman and degrading nature. Alternatively, even if
the treatment was direct in that sense, it was not of the severity to
constitute a violation of Article 3 (Art. 3) of the Convention.
64. The Commission has noted the parties' submissions relevant to the
applicability of Articles 2 and 3 (Art. 2,3) of the Convention to the
applicant's complaints thereunder. The Commission has also noted the
submissions of the parties as to the applicant's father's alleged
deliberate exposure to dangerous doses of radiation and in relation to
the alleged consequent risk of infant illnesses. However, the
Commission does not consider that it is necessary to resolve these
matters in view of its conclusion below. It would note, however, that
any such obligation, to inform and advise about the applicant's
father's participation in the nuclear test programme and about a
consequent risk to the applicant, would only relate to the period after
the acceptance of the right of individual petition by the United
Kingdom Government in January 1966.
65. The Commission considers that in order for the applicant to
establish a violation of Articles 2 and 3 (Art. 2,3) of the Convention,
she must, at least, demonstrate that advice and information (pre-
natally and post-natally) to the applicant's parents could have altered
the fatal nature of her condition or the physical and consequent
psychological impact of the disease.
66. Accordingly, the Commission requested the parties' submissions
as to whether advice and information given to the applicant's parents
(between January 1966 and the date of diagnosis of her illness - "the
relevant period") as regards the nature and impact of her father's
participation in the nuclear test programme at Christmas Island and any
consequent risk to the applicant's health, would have led to an earlier
diagnosis of the applicant's illness. The parties were also asked
whether such advice and information could have altered the course of
that illness or the state of mind of the applicant as regards her
illness. The state of the parties' submissions in this respect is noted
above.
67. The Commission notes that the applicant was approximately four
and a half years old when her illness was diagnosed and it considers
it reasonable to accept that earlier monitoring may have ensured that
the applicant's illness could have been diagnosed earlier.
68. However, the Commission does not consider that the applicant has
demonstrated that such earlier diagnosis and consequent treatment could
have altered the fatal nature of her illness in any way or changed the
physical and the consequent psychological impact of the disease in any
manner. The applicant has submitted, though not until 21 November 1996,
an article entitled "Vincristine in the treatment of acute leukaemia
in children" which was published in the October 1963 edition of the
journal of the American Cancer Society. The article details the results
of tests of a drug conducted in 1963 on children with acute leukaemia.
However, the Commission notes the experimental nature of the treatment
and that the remissions to which the article referred were temporary.
It does not, in the Commission's opinion, constitute in any way a basis
for the assertion that earlier diagnosis and treatment of the applicant
during the relevant period would have altered the nature or course of
her illness in any way. Other than this, no detailed submissions
(including, for example, expert reports) were received from the
applicant as to the state of medical knowledge as regards her illness
during the relevant period or as to the treatment available for
leukaemia during that period. Equally no such detailed submissions were
received as to how the fatal nature of her illness could have been
reversed, as to how the physical or consequent psychological impact of
the illness could have been changed or as to the likelihood of such
results due to earlier diagnosis.
69. The Commission is prepared to accept that detailed and clear
advice and information from the authorities as to the nature and impact
of her father's participation in the test programme may have alleviated
certain uncertainties and anxieties in the applicant's mind as regards
the cause of her illness. However, the Commission recalls that in order
to establish treatment contrary to Article 3 (Art. 3) of the Convention
the applicant must establish that, in all the circumstances of the
case, such uncertainties and anxieties in the absence of such advice
and information attain a minimum level of severity (see, for example,
Eur. Court HR, Ireland v. the United Kingdom judgment, loc. cit.,
p. 65, para. 162). However, the Commission does not consider that such
uncertainties and anxieties arising out of a lack of information and
advice amount, in the circumstances of this case, to treatment of a
degree which the Convention organs accept as constituting treatment of
an inhuman or degrading nature within the meaning of Article 3 (Art. 3)
of the Convention.
70. Accordingly, and whether or not Articles 2 and 3 (Art. 2,3) of
the Convention would apply to the applicant's complaints and whether
or not the submissions of the parties demonstrate the applicant's
father's exposure to dangerous doses of radiation or any knowledge on
the part of the authorities as to the consequent risk to the
applicant's health, the Commission considers that the applicant's
complaints do not disclose a violation of those Articles.
CONCLUSIONS
71. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 2 (Art. 2) of the Convention.
72. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 3 (Art. 3) of the Convention.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
(Or. français)
OPINION CONCORDANTE DE M. I. CABRAL BARRETO
Je suis d'accord avec la Commission pour dire que le traitement
que la requérante a subi n'a pas atteint le minimum de gravité exigé
pour tomber dans le champ d'application de l'article 3 de la
Convention.
Par contre, il me semble que l'incertitude et l'angoisse dues au
manque d'information sur la cause de sa maladie relèvent de l'article 8
de la Convention qui protège l'intégrité physique et moral de la
personne.
Il est vrai que la requérante n'a pas mentionné ce grief dans sa
requête: néanmoins, il me paraît que la Commission, en respectant les
règles du contradictoire, devrait le soulever d'office.