AS TO THE ADMISSIBILITY OF

                       Application No. 23413/94

                       by L.C.B.

                       against the United Kingdom

      The European Commission of Human Rights sitting in private on

28 November 1995, the following members being present:

           MM.   S. TRECHSEL, President

                 H. DANELIUS

                 C.L. ROZAKIS

                 E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

           Mrs.  G.H. THUNE

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 E. KONSTANTINOV

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 P. LORENZEN

                 K. HERNDL

           Mr.   H.C. KRÜGER, Secretary to the Commission

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 21 April 1993 by

L.C.B. against the United Kingdom and registered on 7 February 1994

under file No. 23413/94;

      Having regard to:

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the observations of the Government received on 29 May 1995 and

      those of the applicant in reply received on 29 August 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts as submitted by the parties may be summarised as

follows.

      The applicant is a British citizen, born in April 1966 and

resident in Carntyne. She is represented by Mr. Ian Anderson, an

advocate practising in New York and Scotland.

A.    Particular circumstances of the case

      The applicant's father was a conscript in the Royal Air Force in

1958.      The applicant claims that, while stationed on Christmas Island

      in 1957/1958, her father was lined up and thereby deliberately

      exposed, without protective clothing or a film badge, on four

      occasions to ionising radiation from the atmospheric detonation

      of nuclear devices (including the Grapple Y detonation which took

      place on 28 April 1958). He was also involved in "clean-up"

      operations at the site of these detonations. As a result of these

      explosions he suffered skin blistering and bouts of nausea, which

      ailments were treated at the military medical facility in

      Christmas Island. After discharge from the Royal Air Force in

      1959 the applicant's father continued to suffer from skin rashes.

      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 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.

      The Government submit that the purpose of the detonations was not

      to test the effect on men of dangerous doses of radiation but

      rather that the applicant's father participated on Christmas

      Island in services in support of the nuclear tests carried out

      there. He was a catering assistant in the Royal Air Force. The

      Government further submit that the applicant's father's radiation

      dose is assessed at effectively zero though it is also confirmed

      that her father was not issued with a film badge. 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. He may even have seen the bone structure of his hands at

      the flash of the detonation and he would have been ordered to

      turn around afterwards. This routine was carried out as a safety

      precaution in order 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.

      In or around late 1970, the applicant was diagnosed as suffering

from Acute Myeloid Leukaemia, which is a fatal cancerous disease of the

organs which manufacture blood. In or about 1970 attempts were made by

the applicant's doctors to establish the cause of her illness 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. 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.

      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.

      In or about February 1992 a statistical report entitled

"Radiation Exposure and Subsequent Health History of Veterans and their

Children" was published by the British Nuclear Test Veterans'

Association ("the BNTVA"). The report was requested by an adviser of

the Defence Select Committee and its findings concerned the higher rate

of cancer in children of servicemen conceived and born after their

fathers' exposure to ionising radiation during the nuclear tests in

question. It is not disputed that it was in December 1992 when the

applicant became aware of the contents of the report and of the

connection highlighted therein between her illness and her father's

participation in the test detonations.

      The applicant still has regular medical check-ups and lives under

the threat of recurring serious illness.

      The applicant is a member of the BNTVA. The BNTVA is a voluntary

group founded in 1983 to campaign for recognition and compensation for

those exposed to experimental nuclear explosions. Its members include

British ex-servicemen who were exposed to ionising radiation and their

genetically impaired children. The Chairman of the BNTVA has attempted

to obtain an increase in his pension due to illnesses he alleges are

caused by his deliberate exposure to nuclear detonations on Christmas

Island but claims that he has been unsuccessful as a result of the non-

disclosure of various contemporaneous records by the Government. The

Chairman also alleges that since the foundation of the BNTVA he has

been subjected to a campaign of interception, surveillance and

harassment.

B.    Relevant background

1. Atmospheric Nuclear testing

      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...".

      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". 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.

      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".

      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.

      For twelve years commencing in 1952 the United Kingdom Government

carried out a number of atmospheric nuclear weapon tests in Australia.

In 1958 tests were also carried out off-shore and over the south-

eastern peninsula of Christmas Island. Approximately 20,000 servicemen

participated in the Christmas Island tests ("the test veterans") and

these tests were administered under the supervision of the Atomic

Energy Authority. The weapons tested at Christmas Island were more

powerful than those tested in Australia and many times more powerful

than those detonated in Hiroshima and Nagasaki.

      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 that, if

Australia asked to examine the filters, 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".

      A telex dated July 1956 discussed the brief of the Director of

the Atomic Weapons Research Establishment on the 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)

      In 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 forward civilian personnel would be tested prior to departure

since a person found to be healthy before the test who contracted

leukaemia afterwards "may have a case for arguing that the test was a

cause".

      The applicant also refers to a Ministry of Defence paper dealing

with prospective blast effects of the Grapple Y detonation. This paper,

according to the applicant, gave details of the positions of certain

categories of servicemen, blast effects, thermal radiation, radiation

effects and radiation fallout and stated as follows:

      "Personnel in the main camp should be paraded as at Grapple X

      with the addition of

      protective clothing bearing in mind that thermal radiation may

      be expected from all angles due to scatter. It is 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."

      On 12 March 1984 a debate took place in the House of Commons on

the question of the atmospheric nuclear tests conducted by the United

Kingdom in the Pacific. The content of the Chiefs of Staff's paper

dated 20 May 1953 (noted above) 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 making measurements of the

      flux level of various protected and unprotected positions using

      instruments, and then calculating what the consequences of those

      flux levels would be for man."

      The Minister for Defence Procurement also confirmed that during

the 1956 tests in Maralinga and in order to "allow servicemen

experience the effects of nuclear explosions at ranges closer than

previously allowed, ... 200 United Kingdom servicemen were stationed

at about eight kilometres up wind from zero".

      During that debate 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 National Radiological Protection

Board's ("NRPB") 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 of him,

would be prepared to accept a body with the experience of the NRPB as

an acceptable assessment source.

2. The Royal Commission into British Nuclear Testing in Australia

      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-1980s) to the United Kingdom Public Records Office

under reference number DEFE16. The report of the Australian Royal

Commission published in 1985 noted, inter alia, the following:

(a)   The United Kingdom was misleading in supplying information to the

Australian Government about the tests.

(b)   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.

(c)   There were some serious departures from the contemporary

radiation protection policies and standards during the test programme.

(d)   Exposure to radiation at certain dose levels is associated with

increased risk of cancer and genetic effects. While increased frequency

of genetic effect has not been demonstrated in any irradiated human

population (and noting that such a study would not be practicable), it

is accepted that such effects do occur. By reason of the major

detonations and the deposition of fallout across Australia, it is

probable that cancers, which would not otherwise have occurred, have

been caused in the Australian population.

      The Royal Commission recommended that the United Kingdom

Government clean up certain test areas and 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.

3. Relevant statistical studies and reports

(a)   NRPB report (1988)

      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

(22,247 persons) with a control group (army personnel who passed

similar medical tests on entry into service but who did not participate

in the testing).

      The NRPB report concluded that participation in the nuclear

weapon testing 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 Services, which administers

the war pensions legislation, subsequently awarded war pensions to

those presenting with these two conditions.

(b)   NRPB report (1993)

      A follow up report was completed by the NRPB 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.

(c)   British Nuclear Test Veterans Association ("BNTVA") report (1992)

      In or around February 1992 the BNTVA conducted its own survey of

its members and this report 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)   Atomic Weapons Establishment ("AWE") report (1993)

      In 1993 personnel with the AWE produced a report which described

and summarised the environmental monitoring undertaken at Christmas

Island during the series of test detonations. 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. The report is

stated not to necessarily represent the official views of the AWE.

(e)   Neel reports (1981 and 1990)

      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). This 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 inconclusive.

(f)    Gardner report (1990)

      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.

      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.

(g)   Sir Richard Doll review paper (1993)

      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.

C.    Relevant domestic law and practice

                     Civil action for compensation

      It was accepted by the Secretary of State for Defence in the

House of Commons on 12 April 1994 that the Ministry of Defence "would

consider compensation for any British test veteran whose death or

illness had been caused by radiation from the atmospheric tests".

      The right to compensation under common law is enforceable through

the civil courts once the applicant proves that, given the state of

knowledge at the relevant time, his illness or injury was reasonably

foreseeable and, on the balance of probability, was in fact caused by

the action or inaction of the person against whom he is claiming.

However, armed forces personnel, whose cause of action arose on duty

before 1987, are barred from suing the Crown from compensation by

section 10 of the Crown Proceedings Act 1947. (The repeal of section

10 in 1987 was not applicable to those claiming in respect of pre-1987

actions.) It is disputed between the parties whether that immunity from

suit is applicable in relation to test veterans or the applicant.

      The Government claim that the case of Pearce v. The Secretary of

      State for Defence and Ministry of Defence and Another [1988] 2

      WLR 145 allows persons such as the applicant to take a case

      against the Secretary of State despite the immunity from

      prosecution set down in section 10 of the 1947 Act.

      The applicant disputes the availability of such a civil action,

      submitting that the above-mentioned Pearce case arose out of very

      particular and different facts.

      To date neither a test veteran nor a test veteran's child has

been awarded damages in a civil action of this nature as none have been

able to establish the causal link between the nuclear testing and a

particular illness.

COMPLAINTS

      The applicant complains, in the first place, under Articles 2 and

3 of the Convention. The applicant recognises that the relevant nuclear

detonations occurred prior to the United Kingdom's acceptance of the

right of individual petition. She complains primarily of the United

Kingdom Government's failure to inform and advise in relation to her

father's exposure to radiation during the nuclear tests in Christmas

Island, his medical condition and treatment at the time and in relation

to the consequent risk to her health. She contends, inter alia, that

such failure prevented pre-natal and post-natal monitoring of the

applicant, which would have led to her early diagnosis and treatment

and a longer and qualitatively better life.

      In addition, the applicant complains under Articles 10 and 11 of

the Convention. She refers to the surveillance and interception of

telephone calls and mail of members of the BNTVA (in particular to

specific incidents involving the Chairman of the BNTVA), which

surveillance the applicant claims infringes those members' freedom of

expression and freedom of association and suggests that she has been

subject to interception and surveillance also.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 21 April 1993 and was

registered on 7 February 1994.

      On 9 January 1995 the Commission decided to communicate the

application to the respondent Government and to request them to submit

observations on the admissibility and merits of the applicant's

complaints under Articles 2 and 3 of the Convention.

      The observations of the Government were received on 29 May 1995

after two extensions in the time-limit fixed for this purpose. The

observations of the applicant in reply were received on 29 August 1995

after one extension of the time-limit fixed for this purpose.

THE LAW

Articles 2 and 3 (Art. 2, 3) of the Convention.

      The applicant essentially complains under these Articles of the

Convention about the impact on her of the Government's failure to

inform and advise in relation to her father's exposure to nuclear

detonations on Christmas Island and in relation to the consequent risk

to her health. 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 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 3 (Art. 3)

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

1.    Article 25 (Art. 25) of the Convention

      The Government argue that the applicant cannot claim to be a

victim of a violation of the Convention because her father's exposure

to radiation can be measured at effectively zero and because, even if

her father was exposed to higher levels, there is no scientific

evidence to substantiate the applicant's claim that her illness was

caused by her father's exposure.

      The Government further argue that any complaint by the applicant

about a failure to inform and advise prior to her conception would be

incompatible with the Convention ratione temporis because she would

have been conceived in or around July 1965.

      The applicant argues that the Government's submissions, as

regards the level of her father's exposure to radiation and the

connection between her illness and that exposure, are so closely

connected to the merits of the application that such issues must be

joined with the merits. The applicant further points out that the

United Kingdom recognised the right of individual petition on 14

January 1966, that the applicant was born approximately three months

later and that her leukaemia was not diagnosed until approximately four

and half years later.

      The Commission accepts that, insofar as the applicant's

complaints refer to a failure to inform and advise prior to the date

of recognition of the individual right of petition by the United

Kingdom (being 14 January 1966), such complaints are incompatible with

the Convention ratione temporis and as such must be declared

inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the

Convention. Furthermore, the Commission  considers that the question

of the level of the applicant's father's exposure to radiation and that

of the relationship between her illness and her father's exposure are

closely connected to the merits of the application and, as such, the

Commission's findings in this respect must be joined with the merits

of the application.

2.    Article 26 (Art. 26) of the Convention - exhaustion of domestic

remedies

      The Government refer to the case of Pearce v. the Secretary of

State for Defence and Another [1988] 2 WLR 145 and argue that, since

the applicant has not taken a similar civil action, she has not

exhausted all domestic remedies as required by Article 26 (Art. 26) of

the Convention.

      The availability of this remedy is disputed by the applicant who

submits that the immunity from suit still exists and, in any event,

such an action would not provide an effective remedy. In this respect

the applicant submits, inter alia, that there is a significant

difference between her case and Mr. Pearce's case as she would be

taking an action against the armed forces rather than against private

individuals. The applicant also contends that Mr. Pearce's case

presented an extremely particular set of the facts and points out, in

relation to this latter submission, that no one has ever succeeded in

any such action (not even Mr. Pearce).

      The Commission recalls that, according to the constant case-law

of the Convention organs, the applicant is required to exhaust only

domestic remedies that are likely to be effective and adequate (see,

for example, No. 13156/87, Dec. 1.7.92, D.R. 73 p. 5). A remedy which

clearly lacks any prospect of success is not considered a domestic

remedy which must, pursuant to Article 26 (Art. 26) of the Convention,

be exhausted (No. 12097/86, Dec. 13.7.87, D.R. 53 p. 210). In addition,

the burden of proving the existence of available and sufficient

remedies lies upon the State invoking non-exhaustion (No. 13057/87,

Dec. 15.3.89, D.R. 60 p. 243).

      The Commission notes that the Pearce case did not involve an

allegation that the armed forces had acted negligently. Even assuming

that this remedy is available to the applicants, the Commission

considers that such a remedy would not be effective. No test veteran

or member of a test veteran's family has been awarded damages in a

civil action of this nature as none has been able to establish the

causal link between the nuclear testing and a particular illness.

Indeed the Government themselves refer to the case of Reay and Hope v.

British Nuclear Fuels [1994] 5 Med LR 2 where the court did not accept

that the plaintiffs, children of former workers at the Sellafield

nuclear plant in the United Kingdom the latter of whom it is accepted

were exposed to significant doses of radiation, had proved their case

that their illness was caused by their fathers' exposure.

      The Commission therefore finds that a civil action for damages

against the armed forces cannot be considered, in the present case, to

be an effective and adequate domestic remedy. The Commission therefore

concludes that these complaints of the applicant should not be declared

inadmissible on grounds of the requirement to exhaust domestic remedies

set out in Article 26 (Art. 26) of the Convention.

3.    Article 26 (Art. 26) of the Convention - six months

      The Government also argue that, insofar as the applicant

complains about the exposure of her father in 1958 and about the

failure to warn her parents of the possible effects of that exposure

prior to the applicant being diagnosed as suffering from acute myeloid

leukaemia in 1970, such complaints have been introduced outside the

time-limit set down by Article 26 (Art. 26) of the Convention.

      The applicant points out that she only became aware of the

alleged connection between her illness and her father's radiation

exposure in December 1992. Thereafter she joined a group of veterans

from the BNTVA who brought an application to the Commission on 20 April

1993.      The Commission recalls that it is accepted by the applicant that

any complaint about the fact of her father's participation in the tests

is outside the scope of review of the Commission. It is also recalled

that where there is no final decision, the six-month time-limitnormally

runs from the date of the acts or decisions of which the applicant

complains but that that period can only begin to run from the moment

the applicant learns of that act or decision (cf., for example, No.

12015/86, Dec. 6.7.88, D.R. 57 p. 108).

      The Commission notes that it is not disputed by the Government

that the applicant became aware of the possible connection, between her

illness and the exposure of her father to ionising radiation, in

December 1992 when a statistical report (produced by the BNTVA and

entitled "Radiation Exposure and Subsequent Health History of Veterans

and their Children") was brought to her attention. The Commission

therefore considers that the date from which the six month time-limit

runs is the date of this discovery.

      The Commission also notes that a global application on behalf of

members of the BNTVA was received by the Commission in April 1993. That

application detailed the relevant background to the experimental

nuclear tests and included the same complaints as are now raised by the

applicant. The BNTVA application also included a signed statement of

the applicant who was then a member of the BNTVA, in support of the

complaints made, outlining the background to her father's exposure to

radiation, his subsequent medical treatment and her illness. By letter

dated 10 October 1993 the BNTVA's legal representative informed the

Commission that he intended to transform the global application into

a number of individual applications and the present individual

application was submitted by the applicant on 31 December 1993.

      The Commission considers that the applicant's participation in

the initial global application received by the Commission in April 1993

constituted sufficient introduction of her application before the

Commission for the purposes of Article 26 (Art. 26) of the Convention

(No. 10293/83 Dec. 12.12.85, D.R. 45 p. 41). Therefore the Commission

finds that the present application has been introduced within the time-

limit set down by Article 26 (Art. 26) of the Convention.

4.    The applicant's complaints - Articles 2 and 3 (Art. 2, 3) of the

      Convention

      The applicant refers to the failure by the United Kingdom

Government to inform and advise her parents as to her father's exposure

during his participation in nuclear tests and as to the consequent risk

to her health. She contends, inter alia, that such failure prevented

pre-natal and post-natal monitoring of the applicant, which would have

led to her early diagnosis and treatment and a longer and qualitatively

better life.

      The Government do not dispute that the applicant's father would

have been 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 then after the detonation to turn back around

again. Nor is it disputed that the applicant's father may have seen the

bone structure of his hands at the flash of the detonation. However,

the Government point out that this "mustering" process was for the

servicemen's own safety in order to ensure that servicemen did not look

directly at the flash of light from the detonation as this could have

damaged their eyes.

      The Government deny that the applicant was a test subject. As

regards the Chiefs of Staff's paper dated 20 May 1953, the Government

point out that that paper also referred to the impracticality of

exposing men to atomic weapons "at least within the range of

irreversible tissue damage" and that the Minister for Defence

Procurement refuted allegations of deliberate experimental irradiation

of servicemen in the House of Commons in 1984.

      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, if the applicant's father had been exposed

to dangerous doses of ionising radiation, in the manner in which the

applicant claims, the consequences would have been far more serious

than alleged by the applicant.

      Moreover, the Government argue that even if the applicant was

exposed as he 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 [1994] 5 Med LR 2. The Government add that the BNTVA's report

does not appear to be a peer reviewed published scientific paper.

      In addition, 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 of any increased risk to the applicant of cancer so as to be able

to warn her parents prior to the applicant's leukaemia being diagnosed

and 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 H.R., judgment of 18 January 1978, Series A no. 25, p. 65, para.

162), 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.

      The applicant maintains her account of her father's deliberate

exposure to radiation by the beach front parades to detonations with

a radiation yield and destruction power which greatly exceeded the

detonations in Hiroshima and Nagasaki and of his participation in the

subsequent clean up operations. 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.

      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. In the

first place, she submits that the military authorities foresaw blasts

of such force as to cause servicemen's exposure to radiation together

with considerable material damage and casualties. Secondly, 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 and eye protection.

      The applicant also submits that the interpretation of the Chiefs

of Staff's paper dated 20 May 1953 given to the House of Commons on 12

March 1984 is unconvincing and that it was correctly rejected by

Members of Parliament as an attempt to distort plain English.

      The applicant 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' grouping 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 the certain documents.

      In relation to the 1993 survey, the applicant questions in detail

the basis for the inclusion and exclusion of certain servicemen 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. 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.

      Finally, the applicant refers in detail to the criticisms by the

Australian Commission of the United Kingdom Government's conduct of the

testing in Australia (which took place at the same time as the testing

in Christmas Island) and to the consequent agreement by the United

Kingdom Government to pay compensation to the Australian Government.

      The Commission finds, in light of the parties' submissions, that

this part of the application raises complex and serious issues under

Articles 2 and 3 (Art. 2, 3) of the Convention which require

determination on the merits. It follows that these complaints of the

applicant cannot be dismissed as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring them inadmissible has been established.

Interception of communications

      The applicant complains under Articles 10 and 11 (Art. 10, 11)

of the Convention in relation to surveillance and interception of

telephone calls and mail of members of the BNTVA (in particular to

specific incidents involving the Chairman of the BNTVA). She claims,

inter alia, that that surveillance infringes those members' freedom of

expression and association and suggests that she has been subject to

interception and surveillance also.

      The Government submit, inter alia, that the applicant has not

adduced sufficient evidence to establish a reasonable likelihood of

interception of her telephones or mail.

      The Commission recalls that, though the applicant raises these

complaints under Articles 10 and 11 (Art. 10, 11) of the Convention,

the lex specialis as regards alleged interference with communication

of information or ideas by correspondence is Article 8 (Art. 8) of the

Convention and it is further recalled that communication by telephone

is included in that concept of "correspondence" (No. 8231/78, Dec.

12.10.83, D.R. 49 p. 5 and Eur. Court H.R., A v. France judgment of

23 November 1993, Series A no. 277-B). Therefore, the Commission finds

that these complaints fall to be considered under Article 8

(Art. 8) of the Convention.

      However, the Commission has examined the submissions of the

applicant as to the alleged interceptions and considers that the

applicant has not adduced sufficient evidence to demonstrate a

reasonable likelihood that the applicant's communications have been

intercepted (loc. cit. No. 12015/86, p. 119). Therefore, the Commission

finds that, even assuming exhaustion of domestic remedies, the

applicant's complaints in this respect are unsubstantiated and, as

such, manifestly ill-founded. The Commission must therefore declare

this complaint of the applicant inadmissible pursuant to Article 27

para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, unanimously,

      DECLARES ADMISSIBLE, without prejudging the merits, the

      applicant's complaints under Articles 2 and 3 (Art. 2, 3)

      of the Convention in relation to a failure to inform and advise

      her parents as to her father's exposure during the nuclear tests

      and as to a consequent risk to the applicant's health;

      DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission              President of the Commission

      (H.C. KRÜGER)                             (S. TRECHSEL)