CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 octobre 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  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)