Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12858/87

against Denmark

The European Commission of Human Rights sitting in private

on 3 May 1988, the following members being present:

MM. J.A. FROWEIN, Acting President

C.A. NØRGAARD

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 22 April 1986

by S. against Denmark and registered on 6 April 1987 under file No.

12858/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Danish citizen, born in 1938. He is a

farmer and resides at Sønderborg, Denmark. Before the Commission he

is represented by his lawyer Mr. Jørgen Jacobsen, Copenhagen.

In 1960 the applicant contacted the psychiatric ward of the

Frederiksberg Hospital due to certain mental problems. The applicant

apparently suffered from a neurosis, an obsession to clean up. The

chief physician at the psychiatric ward referred the applicant to LSD

treatment at the hospital on an out-patient basis and from 8 November

1961 to 9 January 1962 the applicant received LSD treatment on six

occasions. His reactions to this treatment were very intense and he

refused further treatment.

The applicant submits that his health deteriorated after

the LSD treatment and he consulted a number of doctors. In 1966

the applicant was treated about ten times with a so-called electrosleep

(elektrosøvn) treatment at the Frederiksberg Hospital but apparently

this did not improve his condition. He felt confined to his bed and

had to leave the daily running of his farm to others. During the

following years the applicant consulted several other doctors and also

lodged a complaint with the National Board of Health (Sundhedsstyrelsen)

about the LSD treatment and the conditions under which it was carried

out. On 22 August 1973 the applicant received an invalidity pension

but his complaint to the National Board of Health did not otherwise

prove successful from his point of view.

In 1974 the applicant instituted proceedings in the High Court

(Østre Landsret) against the doctors who had treated him with LSD and

electrosleep as well as against the National Board of Health in order

to obtain damages for the sufferings he had experienced due to this

treatment.

In the proceedings before the High Court an expert opinion was

obtained from the Medico Legal Council (Retslaegerådet). Furthermore,

the parties and seven witnesses were heard, whereas the Court refused

the applicant's request to hear two further witnesses, a decision

which was upheld by the Supreme Court (Højesteret) on 13 July 1976. On

5 July 1976 the High Court gave judgment in favour of the defendants.

The Court stated that in the early 60's the knowledge of LSD was not

such that doctors in psychiatric wards should have refrained from

using LSD in the treatment of patients. In addition it had not been

proven either that the treatments with LSD and electrosleep had been

carried out in a way which would make the doctors liable to pay

damages, or that these treatments had provoked or aggravated any

suffering of the applicant.

The applicant applied for legal aid in order to appeal against

the judgment of the Supreme Court. However, his application was

refused by the Ministry of Justice on 13 September 1976. The applicant

submits that he nevertheless appealed against the judgment to the

Supreme Court. However, the Supreme Court did not consider the appeal

because the applicant, so he submits, did not fulfil the procedural

requirements for lodging an appeal.

Before and after the above proceedings a public debate had

arisen in Denmark concerning the use of LSD on psychiatric patients

and the applicant pursued his case by complaining inter alia to the

Ministry of the Interior, to the Ombudsman and to the National Board

of Health. In 1985 the applicant felt that he had obtained enough

evidence to prove that he had been maltreated by the doctors in

question when they subjected him to the LSD and electrosleep therapies

in 1961/62 and 1966 respectively. Accordingly the applicant submitted

a petition to the Supreme Court in order to obtain leave to appeal out

of time in accordance with Section 399 para. 2 of the Administration

of Justice Act. Section 399 reads as follows:

"Para. 1. The Supreme Court may as an exception allow

the re-opening of a case already decided upon by the Court

when:

1. it must be considered most likely that the case

contained wrong information for which the applicant could

not be blamed and that the case subsequent to its re-opening

will end with a considerably different result;

2. it must be considered obvious that the applicant

only through this remedy would be able to avoid or redress

a considerable loss; and

3. in other respects the circumstances to a

considerable extent speak in favour of a re-opening.

Para. 2. Under the conditions mentioned in para. 1 the

Supreme Court may allow that a judgment which has been

pronounced by a High Court or a City Court is appealed

against after the time-limit mentioned in Section 372

para. 1, fourth sentence of one year has expired."

On 21 April 1986, however, the Supreme Court decided not to

allow the appeal since the requirements mentioned in Section 399 of

the Administration of Justice Act were not fulfilled.

On 23 April 1986 the Danish Parliament adopted a bill which

provided that all patients who had been subjected to LSD treatment and

suffered from this should receive compensation. The applicant

applied for such compensation and on 28 October 1986 the applicant

received the maximum compensation possible under the law: 255,000

Danish crowns.

COMPLAINTS

The applicant has invoked Articles 3 and 6 of the Convention.

Under Article 3 the applicant maintains that the LSD treatment

he received from 8 November 1961 to 9 January 1962 at the psychiatric

ward of the Frederiksberg Hospital, which in his opinion was of an

experimental character, amounts to inhuman and degrading treatment.

The applicant furthermore maintains that he did not receive a

fair trial in the High Court in 1976. He is of the opinion that the

judgment was based on incorrect statements of witnesses and incorrect

information submitted by the Medico Legal Council. The applicant also

maintains that the High Court's rejection of his request to hear two

expert witnesses amounts to a violation of Article 6 of the Convention.

The applicant finally maintains that the Supreme Court's

refusal of 21 April 1986 to grant him leave to appeal out of time

amounts to a violation of Article 6 of the Convention. In this

respect the applicant is of the opinion that the Supreme Court's

refusal should be considered as the final decision from which to

calculate the running of the six months period set out in Article 26

of the Convention.

THE LAW

1. The applicant alleges that he has been subjected to treatment

contrary to Article 3 (Art. 3) of the Convention when treated with LSD

and electrosleep therapies in 1961/62 and 1966 respectively. He

maintains that he had not exhausted domestic remedies in this respect

until the Supreme Court, on 21 April 1986, rejected his request for

leave to appeal out of time against the judgment of the High Court

pronounced in 1976. The applicant furthermore alleges that the

hearing held in the High Court in 1976 was unfair and contrary to

Article 6 (Art. 6) of the Convention, in particular since the High

Court refused to hear two expert witnesses as requested by him.

Article 26 (Art. 26) of the Convention provides that the

Commission may only deal with matter after all domestic remedies have

been exhausted according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.

In the present case the judgment of the High Court was given

on 5 July 1976. The applicant's appeal was not considered on its

merits but dismissed by the Supreme Court since it did not fulfil the

formal requirements. Approximately nine years later the applicant

submitted a petition to the Supreme Court for leave to appeal against

the 1976 judgment out of time and this petition was rejected by the

Supreme Court on 21 April 1986.

The application to the Commission was introduced on 22 April

1986, i.e. the day after the Supreme Court rejected his request for

leave to appeal out of time but more than six months from the date of

the previous domestic decisions in the applicant's case.

It follows that the Commission can only deal with the

applicant's complaints as set out above if a petition for leave to

appeal out of time in accordance with Section 399 of the

Administration of Justice Act can be considered a remedy within the

meaning of Article 26 (Art. 26) of the Convention, in which case the

six months period provided for in that Article should be calculated

from the date of the decision of the Supreme Court.

The Commission recalls that it has the competence in every

case to appreciate in the light of the particular facts whether a

remedy appears to offer the possibility of effective and sufficient

redress within the meaning of the generally recognised rules of

international law in regard to the exhaustion of domestic remedies

and, if not, to exclude it from consideration in applying the six

months time-limit.

The Commission refers, however, to its extensive jurisprudence

according to which an application for re-trial or similar

extraordinary remedies cannot, as a general rule, be taken into

account in the application of Article 26 (Art. 26) of the Convention

(cf. No. 10326/83, Dec. 6.10.83, D.R. 35 p. 218 with further

references).

In the present case the Commission recalls that the

applicant's request for leave to appeal out of time was made

approximately nine years after the initial proceedings had come to an

end. Furthermore the Commission finds that the requirements for leave

to appeal out of time, as set out in Section 399 of the Danish

Administration of Justice Act, are similar to the conditions governing

applications for re-trial and other extraordinary remedies. Therefore

the Commission finds it justified to base its decision in the present

case on an interpretation of Article 26 (Art. 26) consistent with its

extensive jurisprudence regarding such applications for re-trial and

from which it follows that such remedies should not normally be taken

into consideration as a remedy under Article 26 (Art. 26) of the

Convention. Moreover, the Commission has not found any special

circumstances in the present case which would permit a different

conclusion as to the relevance of a request for leave to appeal out of

time in accordance with Section 399 of the Danish Administration of

Justice Act.

Consequently this remedy did not constitute a domestic remedy

under the generally recognised rules of international law and the

rejection of the applicant's request for leave to appeal by the

Supreme Court on 21 April 1986 cannot be taken into consideration in

determining the final decision for the purpose of applying the six

months time-limit laid down in Article 26 (Art. 26). Accordingly and

irrespective of whether the applicant can be considered as having

exhausted the domestic remedies available to him in 1976, the present

application, submitted to the Commission on 22 April 1986, has been

introduced out of time. Furthermore, an examination of the case does

not disclose the existence of any other special circumstances which

might have interrupted or suspended the running of the six months

period.

It follows that the application, insofar as it relates to

Article 3 (Art. 3) of the Convention and the complaints concerning the

procedures in the High Court in 1976, must be rejected under Article

27 para. 3 (Art. 27-3) of the Convention.

2. The applicant has also complained that the Supreme Court's

refusal to grant him leave to appeal out of time on 21 April 1986

amounts to a violation of Article 6 (Art. 6) of the Convention.

In this respect the Commission recalls that Article 6 (Art. 6)

of the Convention stipulates inter alia that in the determination of

his civil rights and obligations everyone is entitled to a fair

hearing by an independent and impartial tribunal. On the other hand,

however, the right to appeal does not feature among the rights and

freedoms guaranteed by the Convention. No provision of the Convention

therefore requires the High Contracting Parties to grant persons under

their jurisdiction an appeal to a Supreme Court. If a High

Contracting Party makes provisions for such an appeal it is entitled

to prescribe the provisions by which this appeal shall be governed and

fix the conditions under which it may be brought (cf. No. 10515/83,

Dec. 2.10.84, D.R. 40 p. 258).

The Commission is of the opinion that, when the Supreme Court

determines, in a preliminary examination of the case, whether or not

the conditions required for granting leave to appeal out of time have

been fulfilled, it is not making a decision relating to civil rights

and obligations. It follows, therefore, that this provision does not

apply to the proceedings in question where the Supreme Court without

entering into the merits refused the applicant leave to appeal out of

time as set out in Section 399 of the Danish Administration of Justice

Act.

This part of the application is thus incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (J. A. FROWEIN)

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S. v. DENMARK

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