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.

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.