CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mai 1988

.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 }                            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)