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)