CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 1995

.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. 23413/94                        by L.C.B.                        against the United Kingdom         The European Commission of Human Rights sitting in private on 28 November 1995, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, 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 21 April 1993 by L.C.B. against the United Kingdom and registered on 7 February 1994 under file No. 23413/94;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations of the Government received on 29 May 1995 and       those of the applicant in reply received on 29 August 1995;         Having deliberated;         Decides as follows:   THE FACTS         The facts as submitted by the parties may be summarised as follows.         The applicant is a British citizen, born in April 1966 and resident in Carntyne. She is represented by Mr. Ian Anderson, an advocate practising in New York and Scotland.   A.     Particular circumstances of the case         The applicant's father was a conscript in the Royal Air Force in 1958.         The applicant claims that, while stationed on Christmas Island       in 1957/1958, her father was lined up and thereby deliberately       exposed, without protective clothing or a film badge, on four       occasions to ionising radiation from the atmospheric detonation       of nuclear devices (including the Grapple Y detonation which took       place on 28 April 1958). He was also involved in "clean-up"       operations at the site of these detonations. As a result of these       explosions he suffered skin blistering and bouts of nausea, which       ailments were treated at the military medical facility in       Christmas Island. After discharge from the Royal Air Force in       1959 the applicant's father continued to suffer from skin rashes.       The applicant submits that one of these detonations (8 November       1957) was below the expected altitude and blew back onto       Christmas Island with sufficient force to overturn tents,       machinery and personnel. She also submits that the Grapple Y       detonation was also well below the expected altitude and took       place in unpredictable weather conditions so that shortly after       the detonation torrential rain drenched servicemen including her       father.         The Government submit that the purpose of the detonations was not       to test the effect on men of dangerous doses of radiation but       rather that the applicant's father participated on Christmas       Island in services in support of the nuclear tests carried out       there. He was a catering assistant in the Royal Air Force. The       Government further submit that the applicant's father's radiation       dose is assessed at effectively zero though it is also confirmed       that her father was not issued with a film badge. The Government       do not contest that he would have been ordered to line up on the       beach and to face away from the initial detonation covering his       eyes. He may even have seen the bone structure of his hands at       the flash of the detonation and he would have been ordered to       turn around afterwards. This routine was carried out as a safety       precaution in order to ensure that the servicemen were together       at a suitable location and did not look directly at the blast as       this would have harmed their eyes.         In or around late 1970, the applicant was diagnosed as suffering from Acute Myeloid Leukaemia, which is a fatal cancerous disease of the organs which manufacture blood. In or about 1970 attempts were made by the applicant's doctors to establish the cause of her illness by examining her family background. Her parents were required to supply details of their medical history, as well as that of the immediate family and grandparents. When it was clear that there was no history in the family of the applicant's illness, enquiries were made about the applicant's parents' occupations. Those enquiries stopped as soon as the applicant's father indicated that he was in the Royal Air Force on Christmas Island during the United Kingdom's nuclear test programme.         The applicant received chemotherapy treatment which lasted until she was ten years old and she missed half of her primary school education because of her illness and associated treatment. She was also unable to participate in sports or other normal childhood activities.         In or about February 1992 a statistical report entitled "Radiation Exposure and Subsequent Health History of Veterans and their Children" was published by the British Nuclear Test Veterans' Association ("the BNTVA"). The report was requested by an adviser of the Defence Select Committee and its findings concerned the higher rate of cancer in children of servicemen conceived and born after their fathers' exposure to ionising radiation during the nuclear tests in question. It is not disputed that it was in December 1992 when the applicant became aware of the contents of the report and of the connection highlighted therein between her illness and her father's participation in the test detonations.         The applicant still has regular medical check-ups and lives under the threat of recurring serious illness.         The applicant is a member of the BNTVA. The BNTVA is a voluntary group founded in 1983 to campaign for recognition and compensation for those exposed to experimental nuclear explosions. Its members include British ex-servicemen who were exposed to ionising radiation and their genetically impaired children. The Chairman of the BNTVA has attempted to obtain an increase in his pension due to illnesses he alleges are caused by his deliberate exposure to nuclear detonations on Christmas Island but claims that he has been unsuccessful as a result of the non- disclosure of various contemporaneous records by the Government. The Chairman also alleges that since the foundation of the BNTVA he has been subjected to a campaign of interception, surveillance and harassment.   B.     Relevant background   1. Atmospheric Nuclear testing         A document headed "Atomic Weapon Trials", marked "Top Secret" and dated 20 May 1953, of the Defence Research Policy Sub-Committee of the Chiefs of Staff Committee states:         "... Many of these tests are of the highest importance to       Departments... The army must discover the detailed effects of       various types of explosion on equipment, stores and men with and       without various types of protection...".         It was reported in leading medical journals as early as 1946 that exposure to radiation would inevitably have genetic effects on the relevant individuals. A report headed "Genetic effects of radiation with reference to man" of the Medical Research Council ("MRC") dated 6 February 1947 stated that "all quantitative experiments show that even the smallest doses of radiation produce a genetic effect, there being no threshold dose below which no genetic effect is induced". In March 1955 the then Prime Minister (Sir Anthony Eden) requested the MRC to appoint an independent committee to report to Parliament on the medical and genetic effects of radiation. In June 1956 the MRC committee so reported and commented that exposure to ionising radiation, however small, could increase the frequency risk of gene mutation in the reproductive cells, noting that from the film badges of employees of the Atomic Energy Authority it was possible to calculate accurately "the doses received by such employees in relation to their expectation of parenthood" and commenting that the changes in the sex ratio in the children of those exposed to radiation might be due to genetic damage.         Subsequent to a progress report of the MRC committee being shown to the Prime Minister, a letter was sent from Downing Street dated 16 November 1955 reporting the Prime Minister as having commented on such consequences as being "a pity but we cannot help it".         The MRC committee submitted an updated report in 1960 emphasising that the research conducted gave no grounds for believing that there was a threshold below which no increase in mutation occurs.         For twelve years commencing in 1952 the United Kingdom Government carried out a number of atmospheric nuclear weapon tests in Australia. In 1958 tests were also carried out off-shore and over the south- eastern peninsula of Christmas Island. Approximately 20,000 servicemen participated in the Christmas Island tests ("the test veterans") and these tests were administered under the supervision of the Atomic Energy Authority. The weapons tested at Christmas Island were more powerful than those tested in Australia and many times more powerful than those detonated in Hiroshima and Nagasaki.         On 22 December 1955 the Director of the Atomic Weapons Research Establishment wrote to the Ministry of Defence in relation to the supply to a similar Australian body of filter pieces which measured the fallout from the tests in Australia and he recommended that, if Australia asked to examine the filters, pieces of the filters be supplied but "that we wait a few days so that some of the key isotopes have decayed a good deal".         A telex dated July 1956 discussed the brief of the Director of the Atomic Weapons Research Establishment on the recent MRC committee report pending his arrival on Christmas Island and stated as follows:         "We do not want to release any statement on genetic effects or       on radioactivity or strontium pending the arrival of <the       Director>. If you have to, a safer interpretation of the MRC       report in the last sentence of paragraph 4 would be, `has not       shown an increase' rather than `shows an increase'." (emphasis       added)         In July 1958 during a meeting of the Atomic Weapons Research Establishment to discuss the issue of blood monitoring for leukaemia in 4500 servicemen about to depart for Christmas Island it was agreed that only forward civilian personnel would be tested prior to departure since a person found to be healthy before the test who contracted leukaemia afterwards "may have a case for arguing that the test was a cause".         The applicant also refers to a Ministry of Defence paper dealing with prospective blast effects of the Grapple Y detonation. This paper, according to the applicant, gave details of the positions of certain categories of servicemen, blast effects, thermal radiation, radiation effects and radiation fallout and stated as follows:         "Personnel in the main camp should be paraded as at Grapple X       <a previous detonation in late 1957> with the addition of       protective clothing bearing in mind that thermal radiation may       be expected from all angles due to scatter. It is emphasised that       in the event of the expected yield being obtained or increased       there will almost certainly be, in addition to considerable       material damage, casualties to individuals and this should be       taken into account."         On 12 March 1984 a debate took place in the House of Commons on the question of the atmospheric nuclear tests conducted by the United Kingdom in the Pacific. The content of the Chiefs of Staff's paper dated 20 May 1953 (noted above) was raised and the Minister for Defence Procurement responded by stating that what happened was that:         "The blast and thermal and radiation consequences of a nuclear       explosion on man were determined by making measurements of the       flux level of various protected and unprotected positions using       instruments, and then calculating what the consequences of those       flux levels would be for man."         The Minister for Defence Procurement also confirmed that during the 1956 tests in Maralinga and in order to "allow servicemen experience the effects of nuclear explosions at ranges closer than previously allowed, ... 200 United Kingdom servicemen were stationed at about eight kilometres up wind from zero".         During that debate a Member of Parliament read a letter received that day from the Joint Committee on the Medical Effects of Nuclear Weapons which confirmed that the National Radiological Protection Board's ("NRPB") expertise was in monitoring radiation exposure not in carrying out epidemiological health surveys and, furthermore, expressing surprise that the Government entrusted the investigation into its own liability to a Government body when other bodies, whose impartiality could not be reasonably questioned, were available to do the work. The Minister for Defence Procurement responded by referring to a previous discussion in the House of Commons about the independence and suitability of the NRPB and indicating that he had hoped that the relevant Members of Parliament, who had raised the questions of him, would be prepared to accept a body with the experience of the NRPB as an acceptable assessment source.   2. The Royal Commission into British Nuclear Testing in Australia         The Australian Royal Commission was appointed in July 1984 by the Queen to enquire into the conduct of the Australian tests. That Commission was furnished with documentation including statements, plans and reports covering the planning, execution and results of some of the test activity in Australia, which documents were also transferred at the same time (mid-1980s) to the United Kingdom Public Records Office under reference number DEFE16. The report of the Australian Royal Commission published in 1985 noted, inter alia, the following:   (a)    The United Kingdom was misleading in supplying information to the Australian Government about the tests.   (b)    Various specific tests and projects were criticised as being carried out in an inappropriate and negligent manner causing danger to both civilian populations and military personnel. For example, the Royal Commission found that the safety precautions against radiation exposure employed at Maralinga, South Australia, demonstrated, "ignorance, incompetence and cynicism" by the United Kingdom for the safety of persons in the vicinity of those tests.   (c)    There were some serious departures from the contemporary radiation protection policies and standards during the test programme.   (d)    Exposure to radiation at certain dose levels is associated with increased risk of cancer and genetic effects. While increased frequency of genetic effect has not been demonstrated in any irradiated human population (and noting that such a study would not be practicable), it is accepted that such effects do occur. By reason of the major detonations and the deposition of fallout across Australia, it is probable that cancers, which would not otherwise have occurred, have been caused in the Australian population.         The Royal Commission recommended that the United Kingdom Government clean up certain test areas and that the benefits of certain compensation legislation be extended to include not only military personnel but also civilians who were at the test sites at the relevant time. By agreement dated 10 December 1993 the United Kingdom agreed to pay £20 million to the Government of Australia in settlement of all claims made by any persons (excluding United Kingdom test participants) for injuries connected with the test programme.   3. Relevant statistical studies and reports   (a)    NRPB report (1988)         Due to increasing concern expressed in the media about early deaths of test veterans, the Ministry of Defence commissioned the NRPB (in conjunction with the Imperial Cancer Research Fund) to carry out a study into mortality and cancer rates amongst the test veterans. The NRPB compared the mortality and cancer rates of a body of test veterans (22,247 persons) with a control group (army personnel who passed similar medical tests on entry into service but who did not participate in the testing).         The NRPB report concluded that participation in the nuclear weapon testing programme did not have a detectable effect on the test veterans' overall expectation of life, nor on their total risk of developing cancer. However, the test veterans demonstrated a higher rate of leukaemia and multiple myeloma than the control group.         As a result, the Department of Social Services, which administers the war pensions legislation, subsequently awarded war pensions to those presenting with these two conditions.   (b)    NRPB report (1993)         A follow up report was completed by the NRPB extending the period of review over seven more years so that almost double the number of deaths were available for analysis.         The NRPB again concluded that there had been no detectable difference in the veterans' expectation of life nor as regards their risk of developing cancer or other fatal diseases. The suggestion from the previous report that participants may have experienced small hazards of leukaemia and multiple myeloma, was found not to be supported by the additional data used for the second report and the excesses observed in the first report were reported as being a chance finding, although the possibility that test participation may have caused an additional risk could not be completely ruled out.   (c)    British Nuclear Test Veterans Association ("BNTVA") report (1992)         In or around February 1992 the BNTVA conducted its own survey of its members and this report concluded that 1 in 5 of its members suffered from cancer and that 1 in 4 veterans had children who suffered from defects attributable to genetic origin.   (d)    Atomic Weapons Establishment ("AWE") report (1993)         In 1993 personnel with the AWE produced a report which described and summarised the environmental monitoring undertaken at Christmas Island during the series of test detonations. It concluded that there was no detectable increase in radioactivity on land, in the sea or in the air pursuant to the Christmas Island testing. It also concluded that there was therefore no danger to personnel from external radiation nor from inhalation and ingestion of radioactivity. The report is stated not to necessarily represent the official views of the AWE.   (e)    Neel reports (1981 and 1990)         Following the bombing of Nagasaki and Hiroshima the United States collected data on child births (between 1947 and 1951) and on survivors (for many years after the bombings). This data formed the basis for the 1981 and 1990 Neel reports. The purpose of the data collection was to study the effects of the radiation on survivors and the genetic consequences on children conceived thereafter. There were difficulties in collecting the data from a largely uncooperative population and the studies, in relation to the children, were inconclusive.   (f)     Gardner report (1990)         In 1983 the United Kingdom set up an independent committee to study the tenfold incidence of leukaemia in Sellafield, a town in the United Kingdom in close proximity to a nuclear power station. In 1984 the committee reported that the disease was more common than could be explained by chance and that external radiation from the plant was too low to cause the leukaemia excess. Thereafter a member of that committee, Professor Gardner, and others conducted three epidemiological studies which concluded in 1990 that the increased incidence of leukaemia among children near Sellafield was associated with parental employment and the recorded doses of external whole body penetrating radiation during work at the plant before conception.         Subsequently, the children of two former workers at the nuclear plant took an action for damages as their fathers had received significant doses of radiation as a result of their work, the children had contracted cancer (acute lymphatic leukaemia and non-Hodgkins lymphoma) and claimed that this was the result of paternal preconception irradiation (Reay and Hope v. British Nuclear Fuels [1994] 5 Med LR 2). The action was unsuccessful, the court finding that, on the balance of probabilities, the available scientific evidence was insufficient to demonstrate that the children's cancer was caused by their fathers' exposure. The court found, as regards the Gardner report, that it conflicted with the Neel studies and that it required further confirmatory studies.   (g)    Sir Richard Doll review paper (1993)         Sir Richard Doll, a leading British epidemiologist, published a paper in the Journal of Radiological Protection in 1993 which, according to the Government, effectively dismissed Professor Gardner's conclusions.   C.     Relevant domestic law and practice                        Civil action for compensation         It was accepted by the Secretary of State for Defence in the House of Commons on 12 April 1994 that the Ministry of Defence "would consider compensation for any British test veteran whose death or illness had been caused by radiation from the atmospheric tests".         The right to compensation under common law is enforceable through the civil courts once the applicant proves that, given the state of knowledge at the relevant time, his illness or injury was reasonably foreseeable and, on the balance of probability, was in fact caused by the action or inaction of the person against whom he is claiming. However, armed forces personnel, whose cause of action arose on duty before 1987, are barred from suing the Crown from compensation by section 10 of the Crown Proceedings Act 1947. (The repeal of section 10 in 1987 was not applicable to those claiming in respect of pre-1987 actions.) It is disputed between the parties whether that immunity from suit is applicable in relation to test veterans or the applicant.         The Government claim that the case of Pearce v. The Secretary of       State for Defence and Ministry of Defence and Another [1988] 2       WLR 145 allows persons such as the applicant to take a case       against the Secretary of State despite the immunity from       prosecution set down in section 10 of the 1947 Act.         The applicant disputes the availability of such a civil action,       submitting that the above-mentioned Pearce case arose out of very       particular and different facts.         To date neither a test veteran nor a test veteran's child has been awarded damages in a civil action of this nature as none have been able to establish the causal link between the nuclear testing and a particular illness.   COMPLAINTS         The applicant complains, in the first place, under Articles 2 and 3 of the Convention. The applicant recognises that the relevant nuclear detonations occurred prior to the United Kingdom's acceptance of the right of individual petition. She complains primarily of the United Kingdom Government's failure to inform and advise in relation to her father's exposure to radiation during the nuclear tests in Christmas Island, his medical condition and treatment at the time and in relation to the consequent risk to her health. She contends, inter alia, that such failure prevented pre-natal and post-natal monitoring of the applicant, which would have led to her early diagnosis and treatment and a longer and qualitatively better life.         In addition, the applicant complains under Articles 10 and 11 of the Convention. She refers to the surveillance and interception of telephone calls and mail of members of the BNTVA (in particular to specific incidents involving the Chairman of the BNTVA), which surveillance the applicant claims infringes those members' freedom of expression and freedom of association and suggests that she has been subject to interception and surveillance also.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 April 1993 and was registered on 7 February 1994.         On 9 January 1995 the Commission decided to communicate the application to the respondent Government and to request them to submit observations on the admissibility and merits of the applicant's complaints under Articles 2 and 3 of the Convention.         The observations of the Government were received on 29 May 1995 after two extensions in the time-limit fixed for this purpose. The observations of the applicant in reply were received on 29 August 1995 after one extension of the time-limit fixed for this purpose.   THE LAW   Articles 2 and 3 (Art. 2, 3) of the Convention.         The applicant essentially complains under these Articles of the Convention about the impact on her of the Government's failure to inform and advise in relation to her father's exposure to nuclear detonations on Christmas Island and in relation to the consequent risk to her health. Articles 2 and 3 (Art. 2, 3) of the Convention, insofar as relevant, read as follows:                             Article 2 (Art. 2)         "1.   Everyone's right to life shall be protected by law. No one       shall be deprived of his life intentionally save in the execution       of a sentence of a court following his conviction of a crime for       which this penalty is provided by law."                             Article 3 (Art. 3)         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."   1.     Article 25 (Art. 25) of the Convention         The Government argue that the applicant cannot claim to be a victim of a violation of the Convention because her father's exposure to radiation can be measured at effectively zero and because, even if her father was exposed to higher levels, there is no scientific evidence to substantiate the applicant's claim that her illness was caused by her father's exposure.         The Government further argue that any complaint by the applicant about a failure to inform and advise prior to her conception would be incompatible with the Convention ratione temporis because she would have been conceived in or around July 1965.         The applicant argues that the Government's submissions, as regards the level of her father's exposure to radiation and the connection between her illness and that exposure, are so closely connected to the merits of the application that such issues must be joined with the merits. The applicant further points out that the United Kingdom recognised the right of individual petition on 14 January 1966, that the applicant was born approximately three months later and that her leukaemia was not diagnosed until approximately four and half years later.         The Commission accepts that, insofar as the applicant's complaints refer to a failure to inform and advise prior to the date of recognition of the individual right of petition by the United Kingdom (being 14 January 1966), such complaints are incompatible with the Convention ratione temporis and as such must be declared inadmissible pursuant to Article 27 para. 2 (Art. 27-2) of the Convention. Furthermore, the Commission   considers that the question of the level of the applicant's father's exposure to radiation and that of the relationship between her illness and her father's exposure are closely connected to the merits of the application and, as such, the Commission's findings in this respect must be joined with the merits of the application.   2.     Article 26 (Art. 26) of the Convention - exhaustion of domestic remedies         The Government refer to the case of Pearce v. the Secretary of State for Defence and Another [1988] 2 WLR 145 and argue that, since the applicant has not taken a similar civil action, she has not exhausted all domestic remedies as required by Article 26 (Art. 26) of the Convention.         The availability of this remedy is disputed by the applicant who submits that the immunity from suit still exists and, in any event, such an action would not provide an effective remedy. In this respect the applicant submits, inter alia, that there is a significant difference between her case and Mr. Pearce's case as she would be taking an action against the armed forces rather than against private individuals. The applicant also contends that Mr. Pearce's case presented an extremely particular set of the facts and points out, in relation to this latter submission, that no one has ever succeeded in any such action (not even Mr. Pearce).         The Commission recalls that, according to the constant case-law of the Convention organs, the applicant is required to exhaust only domestic remedies that are likely to be effective and adequate (see, for example, No. 13156/87, Dec. 1.7.92, D.R. 73 p. 5). A remedy which clearly lacks any prospect of success is not considered a domestic remedy which must, pursuant to Article 26 (Art. 26) of the Convention, be exhausted (No. 12097/86, Dec. 13.7.87, D.R. 53 p. 210). In addition, the burden of proving the existence of available and sufficient remedies lies upon the State invoking non-exhaustion (No. 13057/87, Dec. 15.3.89, D.R. 60 p. 243).         The Commission notes that the Pearce case did not involve an allegation that the armed forces had acted negligently. Even assuming that this remedy is available to the applicants, the Commission considers that such a remedy would not be effective. No test veteran or member of a test veteran's family has been awarded damages in a civil action of this nature as none has been able to establish the causal link between the nuclear testing and a particular illness. Indeed the Government themselves refer to the case of Reay and Hope v. British Nuclear Fuels [1994] 5 Med LR 2 where the court did not accept that the plaintiffs, children of former workers at the Sellafield nuclear plant in the United Kingdom the latter of whom it is accepted were exposed to significant doses of radiation, had proved their case that their illness was caused by their fathers' exposure.         The Commission therefore finds that a civil action for damages against the armed forces cannot be considered, in the present case, to be an effective and adequate domestic remedy. The Commission therefore concludes that these complaints of the applicant should not be declared inadmissible on grounds of the requirement to exhaust domestic remedies set out in Article 26 (Art. 26) of the Convention.   3.     Article 26 (Art. 26) of the Convention - six months         The Government also argue that, insofar as the applicant complains about the exposure of her father in 1958 and about the failure to warn her parents of the possible effects of that exposure prior to the applicant being diagnosed as suffering from acute myeloid leukaemia in 1970, such complaints have been introduced outside the time-limit set down by Article 26 (Art. 26) of the Convention.         The applicant points out that she only became aware of the alleged connection between her illness and her father's radiation exposure in December 1992. Thereafter she joined a group of veterans from the BNTVA who brought an application to the Commission on 20 April 1993.           The Commission recalls that it is accepted by the applicant that any complaint about the fact of her father's participation in the tests is outside the scope of review of the Commission. It is also recalled that where there is no final decision, the six-month time-limitnormally runs from the date of the acts or decisions of which the applicant complains but that that period can only begin to run from the moment the applicant learns of that act or decision (cf., for example, No. 12015/86, Dec. 6.7.88, D.R. 57 p. 108).         The Commission notes that it is not disputed by the Government that the applicant became aware of the possible connection, between her illness and the exposure of her father to ionising radiation, in December 1992 when a statistical report (produced by the BNTVA and entitled "Radiation Exposure and Subsequent Health History of Veterans and their Children") was brought to her attention. The Commission therefore considers that the date from which the six month time-limit runs is the date of this discovery.         The Commission also notes that a global application on behalf of members of the BNTVA was received by the Commission in April 1993. That application detailed the relevant background to the experimental nuclear tests and included the same complaints as are now raised by the applicant. The BNTVA application also included a signed statement of the applicant who was then a member of the BNTVA, in support of the complaints made, outlining the background to her father's exposure to radiation, his subsequent medical treatment and her illness. By letter dated 10 October 1993 the BNTVA's legal representative informed the Commission that he intended to transform the global application into a number of individual applications and the present individual application was submitted by the applicant on 31 December 1993.         The Commission considers that the applicant's participation in the initial global application received by the Commission in April 1993 constituted sufficient introduction of her application before the Commission for the purposes of Article 26 (Art. 26) of the Convention (No. 10293/83 Dec. 12.12.85, D.R. 45 p. 41). Therefore the Commission finds that the present application has been introduced within the time- limit set down by Article 26 (Art. 26) of the Convention.   4.     The applicant's complaints - Articles 2 and 3 (Art. 2, 3) of the       Convention         The applicant refers to the failure by the United Kingdom Government to inform and advise her parents as to her father's exposure during his participation in nuclear tests and as to the consequent risk to her health. She contends, inter alia, that such failure prevented pre-natal and post-natal monitoring of the applicant, which would have led to her early diagnosis and treatment and a longer and qualitatively better life.         The Government do not dispute that the applicant's father would have been ordered to line up on a beach in light clothing during the detonations at Christmas Island, to face away from the detonation while covering his eyes and then after the detonation to turn back around again. Nor is it disputed that the applicant's father may have seen the bone structure of his hands at the flash of the detonation. However, the Government point out that this "mustering" process was for the servicemen's own safety in order to ensure that servicemen did not look directly at the flash of light from the detonation as this could have damaged their eyes.         The Government deny that the applicant was a test subject. As regards the Chiefs of Staff's paper dated 20 May 1953, the Government point out that that paper also referred to the impracticality of exposing men to atomic weapons "at least within the range of irreversible tissue damage" and that the Minister for Defence Procurement refuted allegations of deliberate experimental irradiation of servicemen in the House of Commons in 1984.         Furthermore, the Government, while accepting that the applicant's father was not issued with a film badge for monitoring external radiation, submit that the applicant's father worked as a catering assistant, that his job would not have involved significant levels of radiation and that his dose is assessed at effectively zero. In this respect the Government submit that if servicemen were exposed as the applicant submits, an overall excess of cancer would be expected among those servicemen. However, the conclusions of the statistical surveys and analyses conducted by the NRPB (a body independent of the Ministry of Defence) show no such increased mortality or cancer rate in the test participants. In addition, if the applicant's father had been exposed to dangerous doses of ionising radiation, in the manner in which the applicant claims, the consequences would have been far more serious than alleged by the applicant.         Moreover, the Government argue that even if the applicant was exposed as he submits, there is no conclusive evidence that this causes a predisposition to certain illnesses in children and in this respect the Government rely on the conclusions in the 1990 Neel report, a 1993 paper published by a leading epidemiologist Sir Richard Doll and the decision of the court in the case of Reay and Hope v. British Nuclear Fuels [1994] 5 Med LR 2. The Government add that the BNTVA's report does not appear to be a peer reviewed published scientific paper.         In addition, while there may be an obligation under Article 2 (Art. 2) of the Convention to take appropriate steps to safeguard life, there is no evidence that the Government ought reasonably to have been aware of any increased risk to the applicant of cancer so as to be able to warn her parents prior to the applicant's leukaemia being diagnosed and there was, therefore, no obligation on the Government to warn the applicant's parents in relation to effects of the applicant's father's exposure.         Furthermore and as regards Article 3 (Art. 3) of the Convention, the Government, relying on the Ireland v. the United Kingdom case (Eur. Court H.R., judgment of 18 January 1978, Series A no. 25, p. 65, para. 162), argue that the applicant in the present case cannot show any direct treatment of an inhuman and degrading nature. Alternatively, even if the treatment was direct in that sense, it was not of the severity to constitute a violation of Article 3 (Art. 3) of the Convention.         The applicant maintains her account of her father's deliberate exposure to radiation by the beach front parades to detonations with a radiation yield and destruction power which greatly exceeded the detonations in Hiroshima and Nagasaki and of his participation in the subsequent clean up operations. Since no film badges were issued, she challenges the Government's statement, that her father's dose of radiation is effectively assessed at zero, as bald.       The applicant questions how beach front parades in light clothing and the order to face the detonation site immediately thereafter could possibly have been designed as a safety measure for servicemen. In the first place, she submits that the military authorities foresaw blasts of such force as to cause servicemen's exposure to radiation together with considerable material damage and casualties. Secondly, she submits that adequate safety measures, in those circumstances, would have required shielding (as opposed to exposure) behind properly designed embankments, in low lying areas or in properly constructed buildings with protective clothing and eye protection.         The applicant also submits that the interpretation of the Chiefs of Staff's paper dated 20 May 1953 given to the House of Commons on 12 March 1984 is unconvincing and that it was correctly rejected by Members of Parliament as an attempt to distort plain English.         The applicant challenges in some detail the NRPB reports. The applicant notes that, while the 1985 NRPB results demonstrated that levels of leukaemia and multiple myeloma were three times higher in the veterans' grouping and that leukaemia was a "cancer most closely associated with ionising radiation", the study concluded that this difference was due to the extraordinarily low incidence of those diseases in the control group, which conclusion would seem to undermine the very rationale of using a control group. In addition, the NRPB did not have access to the certain documents.         In relation to the 1993 survey, the applicant questions in detail the basis for the inclusion and exclusion of certain servicemen from the study. She also challenges the sufficiency of the information on participants with cancer and the conclusion of the report in relation to the incidence of leukaemia in veterans. The applicant submits that the report's conclusions contain inferences which contravene the comparison hypotheses upon which the studies were based. Finally the applicant questions the suitability and independence of the NRPB referring to the letter read by a Member of Parliament on 12 March 1984 to the House of Commons from the Joint Committee on the Medical Effects of Nuclear Weapons and noting that all information in terms of the test veterans and the control group was supplied to the NRPB by the Ministry of Defence.         Finally, the applicant refers in detail to the criticisms by the Australian Commission of the United Kingdom Government's conduct of the testing in Australia (which took place at the same time as the testing in Christmas Island) and to the consequent agreement by the United Kingdom Government to pay compensation to the Australian Government.         The Commission finds, in light of the parties' submissions, that this part of the application raises complex and serious issues under Articles 2 and 3 (Art. 2, 3) of the Convention which require determination on the merits. It follows that these complaints of the applicant cannot be dismis