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)