Lexploria

The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

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

Having regard to Art. 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 August 1985 by D.F.

against the United Kingdom and registered on 4 March 1986 under file

No. 12016/86;

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

Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The applicant is a British citizen born in 1939. He is currently

serving a prison sentence in Long Lartin. The facts as submitted by

the applicant may be summarised as follows.

On 29 July 1970, the applicant was sentenced to two terms of life

imprisonment for offences of buggery and also received concurrent

sentences of 10, 7 and 2 years for indecent assault, attempted rape,

incitement of a child to commit acts of indecency and possession of an

offensive weapon. Both before and after his trial, the applicant

attempted to commit suicide by taking an overdose of barbiturates.

The applicant appealed against his conviction but his appeal was

rejected in April 1971. He subsequently made a third suicide attempt.

The applicant attributes these attempts to the despair and depression

caused by being wrongfully convicted and the ostracism and threats he

received from the other prisoners.

The applicant had begun serving his sentence in Wakefield Prison. A

prison psychiatrist had recommended that the applicant be allowed to

stay in the quieter atmosphere of the prison hospital, but in February

1972, the applicant was returned to the main wing of the prison.

Almost immediately, the applicant destroyed a T.V. and was returned to

spend three days in a strait jacket in a hospital cell. The applicant

then apparently made an attempt to hang himself and was returned again

to the hospital.

In August 1972, a new doctor, Dr. Xavier arrived in the hospital.

The applicant claims that this doctor began to pressurise him to

undertake a course of drug treatment. The applicant says that he

refused any such proposals.

On 1 September 1972 the applicant states that he was taken from the

workshop to his cell, where at least five hospital officers entered

the room, one of whom was carrying a syringe. The applicant claims

that he was ordered to remove his trousers and lie down on the bed: he

refused and protested that he did not wish to take drugs. The

officers then apparently seized the applicant, who struggled until he

was told that if he resisted the needle would break off in his

buttock. Frightened, the applicant stopped struggling and an

injection of serenace was administered.

The applicant began allegedly to suffer disturbing after-effects. He

suffered from blurred vision, lost his appetite; he began to tremble

uncontrollably, and felt sick and frightened. He states that he

continued to receive injections for four days in the same

circumstances. He was told that this would continue until he agreed

to take stelazine orally. He did agree to this to end the injections

but succeeded in spitting the dose into a mug of water for several

months. The applicant then pretended to have the symptoms of another

prisoner who was being force-fed on complan which contained stelazine.

Following an examination by Dr. Xavier, in which it was observed the

applicant had not been taking the drugs, the applicant states that he

was again forcibly injected in the buttocks, on this occasion with the

drug modecate. The applicant then claims to have experienced more

severe after-effects: he began to drool saliva; he could not keep

still but walked constantly around his cell or the hospital ward; his

hands and knees jerked uncontrollably; he lost interest in his hobbies

and the smallest routine actions assumed frightening proportions. His

sister paid him a visit during this period and he told her that the

drugs were being administered against his will.

In November 1972, the applicant was so distressed by the treatment

that he attempted to commit suicide by electrocuting himself. He

claims that the forcible injections of modecate continued however

until December 1972 . In January 1973, he was returned to the main

wing of the prison. The applicant states that he then began to suffer

severe withdrawal symptoms, which did not completely abate for four

months.

The applicant claims that Dr. Xavier took a great interest in

prescribing drugs and that he became notorious for this in the prison.

He claims that Dr. Xavier wished to stop his continued attempts to

prove his innocence and felt that no-one should stay in the hospital

wing without receiving treatment.

In July 1973, the applicant was attacked by another prisoner and

received stitches for a mouth wound. In September 1974, he refused to

go to a prison workshop because of threats received from an other

prisoner and was moved to another workshop. Two days later, he was

called to the prison surgery and told that Dr. Xavier had ordered

modecate treatment. The applicant took the dose orally, but later

spat it out. That night he took an overdose of drugs. The new

principal medical officer questioned him later and the applicant told

him he was frightened that the drug treatment had recommenced. The

applicant states that he was told shortly afterwards by the principal

medical officer that he would not be injected with these types of

drugs again.

The applicant had petitioned the Home Office concerning the injections

in 1972, but the Home Office stated that the doctor was acting quite

properly. He complained to and of Dr. Xavier repeatedly in the

prison and medical records of the hospital include the comment that

the applicant wanted to have nothing to do with Dr. Xavier. The

applicant's sister also complained to Dr. Xavier and the Assistant

Governor: she had been alarmed by the state of her brother during her

visits and states that he claimed he was being forced to take drug

treatment.

There is also a note signed by Dr. Xavier to the prison governor

dated 5 October 1972 in which he states that the applicant "... has

continued to improve upon a mixture which he now takes

voluntarily...".

The applicant did not however take legal action, until on

15 October 1979, his solicitors issued a writ against the Home Office

alleging that he had been injected and administered drugs against his

will, and claiming damages for assault, battery, trespass to the

person and negligence. The Home Office claimed that the action was

statute barred since more than three years had elapsed since the

events complained of. The Court of Appeal, in a judgment dated

31 July 1981, held that as Dr. Xavier had since died, the applicant

should not be allowed to proceed with the claims based on his alleged

medical negligence, but that in regard to the other claims, it would

be equitable to allow the action to proceed.

The hearing of the action for assault, battery and trespass to the

person took place in May 1983. The Home Office admitted that between

September and December 1972, Dr. Xavier had prescribed stelazane,

modecate and serenace: they disputed however that the drug had been

administered without his consent. In a judgment given on 19 May 1983

Mr. Justice McCowan found after considering the evidence of the

applicant and the Home Office that the applicant had consented to the

administration of the drugs and that they had not been administered by

force. He also rejected the argument that the applicant could not in

the circumstances of the case, as a prisoner subject to the authority

of prison doctors, give a valid consent to such treatment. The

applicant appealed: he was unable to challenge the judge's findings of

fact or the judge's conclusions on the evidence but was able to appeal

on the point of law concerning whether a prisoner could in law give a

valid consent to prison doctors. The Court of Appeal dismissed the

appeal on 7 March 1984. The applicant's appeal to the House of Lords

was dismissed on 1 April 1985.

COMPLAINTS

The applicant complains that the medical treatment which he received

was administered without his consent, with physical force and in an

inhuman and degrading fashion. He also complains that he did not

receive the necessary antidotes to counteract the side effects and was

a victim of sadistic and intolerable treatment, which subjected him to

a form of mental torture. He claims that the Home Office has not put

forward any justification for the administration of these drugs. The

applicant does not complain of the court proceedings or invoke

Article 6 (art. 6).

The applicant accordingly invokes Article 3 (art. 3) and

Article 5 (5) (art. 5-5) of the Convention.

THE LAW

1. The applicant complains that he was administered with drugs by

force without his consent, causing him severe physical and mental

distress from the degrading manner in which the injections were

carried out and from the after-effects which he suffered from the

drugs.

Article 3 (art. 3) of the Convention provides that:

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

treatment or punishment".

The Commission recalls that the applicant brought a claim for assault,

battery and trespass to the person against the prison authorities on

the grounds that he had not consented to the injections. It appears

however that after considering the evidence presented by the applicant

and the Home Office, the High Court judge in the first instance

proceedings concluded that the applicant had in fact consented to the

administration of the drugs by Dr. Xavier and that they had not been

administered by force.

The issue of fact, namely, whether the applicant did consent to the

drug treatment was fully aired before a domestic court. Such a matter

necessarily falls within the appreciation of an independent and

impartial court and therefore cannot be reviewed by the Commission

unless there is an indication that the judge has drawn grossly unfair

or arbitrary conclusions from the facts before him. No such

indication has been given in the present case. The Commission

therefore finds in the circumstances of the present application that

the complaint as submitted by the applicant fails to disclose any

appearance of a violation of Article 3 (art. 3) of the Convention.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.

2. The applicant also complains of a breach of Article 5 para. 5

(art. 5-5) of the Convention.

Article 5 para. 5 (art. 5-5) of the Convention states that:

"Everyone who has been the victim of arrest or detention in

contravention of the provisions of this article shall have an

enforceable right to compensation".

However, the Commission recalls that this provision guarantees the

right of compensation only to victims of a violation of Article 5

para. 1 to 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4) of the

Convention (see e.g. Application No. 6724/74, X. v. FRG,

Dec. 10.12.75, D.R. 5 p. 8).

The applicant has not complained that he has been arrested or detained

in breach of these provisions and he has failed to submit any evidence

that he is not in fact detained lawfully following conviction by a

competent court.

The Commission has examined the applicant's complaint as submitted by

him but finds that this complaint has not been substantiated and that

there is no appearance of a violation of Article 5 para. 5 (art. 5-5)

of the Convention.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary President

to the Commission of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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F. v. THE UNITED KINGDOM

F. v. THE UNITED KINGDOM

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