CEDH · CASELAW;REPORTS;ENG — 26 novembre 1996

.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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 23413/94                                   L.C. B.                                   against                               the United Kingdom                          REPORT OF THE COMMISSION                        (adopted on 26 November 1996)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-14) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-14) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 15-47). . . . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant background            (paras. 15-42) . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 43-47) . . . . . . . . . . . . . . . . . . . . . 8   III.   OPINION OF THE COMMISSION       (paras. 48-72). . . . . . . . . . . . . . . . . . . . . . . .10         A.    Complaints declared admissible            (para. 48) . . . . . . . . . . . . . . . . . . . . . . .10         B.    Points at issue            (para. 49) . . . . . . . . . . . . . . . . . . . . . . .10         C.    As regards Articles 2 and 3 of the Convention            (paras. 50-70) . . . . . . . . . . . . . . . . . . . . .10              CONCLUSIONS            (paras. 71-72) . . . . . . . . . . . . . . . . . . . . .14   CONCURRING OPINION OF MR. I. CABRAL BARRETO . . . . . . . . . . . .15   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION . . . . . . . . . . . .16   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2.     The applicant is a British citizen, born in 1966 and resident in Carntyne. She was represented before the Commission by Mr. Ian Anderson, an advocate practising in New York and Scotland.   3.     The application is directed against the United Kingdom. The respondent Government were represented by Ms. Susan Dickson, Agent, Foreign and Commonwealth Office.   4.     The applicant is the daughter of a serviceman who participated in the United Kingdom's nuclear test programme at Christmas Island and she was diagnosed with leukaemia when she was four years old. The case concerns an alleged failure to inform and advise the applicant's parents about her father's participation in the test programme and about the consequent risk to her health. The applicant invokes Articles 2 and 3 of the Convention.   B.     The proceedings   5.     The application was introduced on 21 April 1993 and was registered on 7 February 1994.   6.     On 9 January 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Articles 2 and 3 of the Convention.   7.     The Government's observations were submitted on 29 May 1995 after two extensions of the time-limit fixed for this purpose. The applicant replied on 29 August 1995 after one extension of the time-limit. On 27 October 1995 the Commission granted the applicant legal aid for the representation of her case.   8.     On 28 November 1995 the Commission declared admissible the applicant's complaints under Articles 2 and 3 of the Convention and declared inadmissible the remainder of the application.   9.     The text of the Commission's decision on admissibility was sent to the parties on 30 November 1995 and they were invited to submit further observations.   The Government submitted observations dated 1 February, 4 June, 2 August and 11 October 1996 and the applicant submitted observations on 29 January, 1 April, 3 May, 17 June, 24 September and 21 November 1996.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  J.-C. GEUS                  M.P. PELLONPÄÄ                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ   12.    The text of this Report was adopted on 26 November 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 of the Convention, is:         (i)   to establish the facts, and         (ii) to state an opinion as to whether the facts found disclose            a breach by the State concerned of its obligations under            the Convention.   14.    The Commission's decision on the admissibility of the application is annexed hereto. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Relevant background   1.     Atmospheric Nuclear testing programmes   15.    Between 1952 and 1967 the United Kingdom Government carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and Australia.   16.    Over 20,000 servicemen participated in these tests. The tests included seven detonations at Maralinga, south Australia in 1956 and 1957 and six detonations at Christmas Island on 8 November 1957, 28 April 1958, 22 August 1958, 2 September 1958, 11 September 1958 and 23 September 1958. The weapons detonated in 1958 at Christmas Island were more powerful than those detonated at Maralinga and many times more powerful than those detonated at Hiroshima and Nagasaki. All devices in the megaton range (Operations Grapple X, Grapple Y and two in the Grapple Z series) were detonated over the sea off the south- eastern peninsula of Christmas Island and the two Grapple Z devices in the kiloton range were detonated over the south-eastern peninsula. Many of the servicemen who participated in the tests were lined-up in the open air in light clothing at the moment of the detonations, ordered to look away from the direction of the initial flash and then ordered to turn around in the direction of the blast.   17.    The United States also ran a test programme in the Pacific which included the detonation of a hydrogen bomb at Bikini Island in 1954.   2.     Documents submitted in support of the applicant's submission as       to one of the reasons for the United Kingdom's nuclear test       programme   18.    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...".   19.    On 12 March 1984 a debate took place in the House of Commons on the United Kingdom's nuclear test programme. The content of the above document 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 taking measurements of the flux level of various protected and unprotected positions using instruments. The consequences of those flux levels for man would then be calculated. The Minister also confirmed that, during the tests in Maralinga and in order to allow servicemen to experience the effects of nuclear explosions at ranges closer than previously allowed, 200 United Kingdom servicemen were stationed at about eight kilometres from the epicentres of the detonations.   20.    A memorandum headed "Atomic Weapons Trials and Training" and dated 29 November 1955 noted that during the 1957 trials the Royal Air Force "will gain invaluable experience in handling the weapons and demonstrating at first hand the effects of nuclear explosions on personnel and equipment". 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, if Australia asked to examine the filters, that 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".   21.    A War Office memorandum dated 19 November 1957 and headed "UK personnel for duty at Maralinga" began by stating that "All personnel selected for duty at Maralinga may be exposed to radiation in the course of their military duties". The memorandum continued by referring to initial medical examinations including detailed blood count analysis to determine suitability for duty prior to duty in Maralinga together with blood analysis on return from duty. It concluded that "A steady and progressive fall in successive blood counts or a fall below the warning level indicates that the individual must be removed from all contact with radioactivity until he has been found fit to return to duties involving exposure to radioactivity".   22.    On 15 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 civilian personnel would be tested prior to departure since a serviceman found to be healthy before the test who contracted leukaemia afterwards "may have a case for arguing that the test was a cause".   23.    A Ministry of Defence file, dealing with prospective blast effects of the Grapple Y detonation (at Christmas Island), gave details of the positions of certain categories of servicemen, blast effects, thermal radiation, radiation effects and radiation fallout and stated that personnel in the main camp should be paraded as during 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 was 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."   3.     Medical Research Council   24.    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".   25.    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.   26.    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".   27.    A telex dated July 1956 discussed the brief of the Director of the Atomic Weapons Research Establishment on a 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)   28.    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.   4.     The Royal Commission into British Nuclear Testing in Australia   29.    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-1980's) to the United Kingdom Public Records Office under reference number DEFE16.   30.    The Commission's report was published in 1985. It concluded that in many respects the information furnished by the United Kingdom Government to the Australian Government in relation to the test programme was inadequate. 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. It was also concluded that there had been some serious departures from the contemporary radiation protection policies and standards during the test programme. It was accepted that exposure to radiation at certain dose levels is associated with increased risk of cancer and genetic effects. While increased frequency of genetic effect had not been demonstrated in any irradiated human population (and noting that such a study would not be practicable), it was accepted that such effects do occur. By reason of the major detonations and the deposition of fallout across Australia, it was thought probable that cancers, which would not otherwise have occurred, had been caused in the Australian population.   31.    The Commission, accordingly, recommended, inter alia, 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.   5.     Marshall Islands Nuclear Claims Tribunal   32.    This tribunal was set up in 1987 to consider claims from residents of the Marshall Islands about the United States trial detonations at Bikini Island. By 31 December 1993 the tribunal had admitted 676 claims in respect of cancer related illnesses suffered by the inhabitants of the Marshal Islands. The closest of the Marshal Islands was 120 miles (192 kilometres) from Bikini (Rongelap), four of the relevant islands were over 300 miles (580 kilometres) from Bikini and two were over 500 miles (800 kilometres) from Bikini. The total gross compensation awarded by the tribunal as at 31 December 1993 was $25,225,500.00.   6.     Relevant statistical studies and reports   (a)    The 1988 and 1993 reports of the National Radiological Protection       Board ("NRPB")   33.    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 (21,358 persons) with a control group (army personnel who passed similar medical tests on entry into service but who did not participate in the testing).   34.    During the House of Commons debate on 12 March 1984 on the United Kingdom nuclear test programme, 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 NRPB's 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 would be prepared to accept a body with the experience of the NRPB as an acceptable assessment source.   35.    The NRPB report concluded that participation in the nuclear test 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 Security ("DSS") subsequently awarded war pensions to those presenting these two conditions.   36.    In order to clarify the situation, a follow up report was completed 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.   (b)    The report by personnel of the Atomic Weapons Establishment       ("AWE")   37.    Personnel with the AWE produced a report which described the environmental monitoring programme at Christmas Island during the test detonations and the results obtained. The report, which is stated to not necessarily represent the official views of the AWE, is marked "unclassified" and is dated October 1993. 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.   (c)    The report of the British Nuclear Test Veterans Association       ("BNTVA")   38.    The BNTVA is a voluntary group founded in 1983 to campaign for recognition and compensation for those who participated in the United Kingdom's nuclear test programme and who as a consequence were allegedly exposed to radiation. Its members number approximately 3000 and include British ex-servicemen, who claim that they were deliberately exposed to ionising radiation, and their children who claim to be genetically impaired. Further to a request by an adviser of the Defence Select Committee, a statistical report entitled "Radiation Exposure and Subsequent Health History of Veterans and their Children" was published by the BNTVA in or about February 1992. It was based on a survey of the members of the BNTVA and it 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)    The Neel reports (1981 and 1990)   39.    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). These 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, according to the applicant, inconclusive.   (e)     The Gardner report (1990)   40.    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.   41.    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.   (f)    Sir Richard Doll review paper (1993)   42.    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.   B.     The particular circumstances of the case   43.    The applicant's father was a conscript in the Royal Air Force and he participated in the United Kingdom's nuclear test programme at Christmas Island in 1957 and 1958. During that time he was 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 to face the detonation site immediately after the detonation.   44.    In or about 1970 attempts were made by the applicant's doctors to establish the cause of an illness suffered by the applicant 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. The applicant claims that 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. In or around late 1970 the applicant was admitted to Stobhill hospital with Acute Myeloid Leukaemia, which is a cancerous disease of the organs which manufacture blood. The applicant has submitted a copy of her intake summary to Stobhill hospital which, under the heading "Summary of Possible Causative Factors", records "Father - exposed to radiation".   45.    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.   46.     In December 1992 the applicant became aware of the contents of the BNTVA report and of the connection referred to therein between her illness and her father's participation in the test programme. The applicant is a member of the BNTVA.   47.    The applicant still has regular medical check-ups and submits that she lives under the threat of recurring serious illness.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   48.    The Commission has declared admissible the applicant's complaints about a failure to inform and advise her parents as to her father's alleged exposure during the United Kingdom test programme at Christmas Island and as to the consequent risk to her health.   B.     Points at issue   49.    The points at issue are whether there has been:   -      a violation of Article 2 (Art. 2) of the Convention; and   -      a violation of Article 3 (Art. 3) of the Convention.   C.     As regards Articles 2 and 3 (Art. 2,3) of the Convention   50.    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 ... "                             Article 3 (Art. 3)         "No one shall be subjected to ... inhuman or degrading treatment       ... "   51.    The applicant submits that her father was deliberately exposed to radiation during his participation in the United Kingdom's nuclear test programme at Christmas Island.   52.    In this respect, she refers, in the first place, to the line-up procedure used at the time of the detonations which she submits took place on four occasions and to her father's participation in "clean-up" operations at the site of those detonations. 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. 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, eye protection and film badges.   53.    Secondly, the applicant also submits that various memoranda indicate this intention on the part of the United Kingdom Government (see paragraphs 18-23 above). She submits that the explanations of those memoranda by the Government (particularly in relation to the memorandum of 20 May 1953) are unconvincing. She notes the lack of elaboration by the Government of the use of "dummies" to which they refer and submits that the use of dummies could not possibly be of any significant use in terms of the impact of radiation on the human body.   54.    As a result, the applicant argues that her father was exposed to dangerous doses of radiation during the test programme. She submits that he suffered skin blistering and bouts of nausea immediately after the detonations, which ailments were treated at the military medical facility in Christmas Island. 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 (28 April 1958) 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. 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.   55.    She 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' group 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 certain documents. In relation to the 1993 survey, the applicant questions in detail the basis for the inclusion and exclusion of certain servicemen in and 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 and that many experts have criticised the reports. 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.   56.    Finally, the applicant refers in detail to, inter alia, the criticisms by the Australian Commission of the United Kingdom Government's conduct of the testing in Australia, to the consequent agreement by the United Kingdom Government to pay compensation to the Australian Government and to the results of the Marshall Islands Nuclear Claims Tribunal which related to detonations much farther away from the successful claimants than the Christmas Island detonations.   57.    The applicant goes on to submit that her illness was caused by her father's exposure and that the relevant authorities were aware of at least a real risk of such consequences for her when the Christmas Island test programme was carried out and thereafter. She refers, inter alia, to the work of the Medical Research Council and its committees, the BNTVA report and the Gardner report.   58.    On this basis the applicant argues that the United Kingdom Government should have informed and advised her parents as to the nature and impact of her father's participation in the United Kingdom test programme at Christmas Island and as to the consequent risk to her health so that she would have received earlier monitoring, diagnosis and treatment. In that way, the fatal nature of the disease could have been avoided. In addition, the course of the illness would have been rendered less serious and her physical and consequent psychological suffering reduced. Furthermore, the fact that no such information or advice has been forthcoming in itself caused the applicant much uncertainty and anxiety. The lack of information or advice given to her parents and the consequences of that failure for the applicant amount, according to the applicant, to a violation of Articles 2 and 3 (Art. 2,3) of the Convention.   59.    The Government submit that the purpose of the detonations was not to test the effect on men of radiation but rather to test the nuclear devices themselves. The applicant's father participated in the test in carrying out duties on Christmas Island in support of those tests.   60.    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 and to turn around immediately afterwards to face the detonation site. This procedure was a safety measure 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. As regards the Chief of Staff's memorandum dated 20 May 1953, the Government submit that that memorandum does not indicate that the effects of radiation on servicemen were to be established by exposing those persons to radiation but rather a desire to establish, through the use of, for example, dummies and radiation level recordings, the likely effects on servicemen. As to the other memoranda, the Government deny that they support the applicant's allegations and submit that those memoranda have been taken out of context by the applicant.   61.    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, it is submitted that it would have been impossible to give persons such significant doses of radiation (to produce the immediate after-effects the applicant alleges) without killing them with the blast and heat from the weapons and they refer to a publication in this respect ("The effects of Nuclear Weapons" by Glasstone and Dolan, Third Edition published in 1977).   62.    Moreover, the Government argue that even if the applicant's father was exposed as she 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 (loc. cit.). The Government add that the BNTVA's report does not appear to be a peer reviewed published scientific paper.   63.    In addition, the Government submit that 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 (between 1966 and 1970) or thereafter that there is any increased risk of infant illness due to parental exposure to radiation. 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 HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25), 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.   64.    The Commission has noted the parties' submissions relevant to the applicability of Articles 2 and 3 (Art. 2,3) of the Convention to the applicant's complaints thereunder. The Commission has also noted the submissions of the parties as to the applicant's father's alleged deliberate exposure to dangerous doses of radiation and in relation to the alleged consequent risk of infant illnesses. However, the Commission does not consider that it is necessary to resolve these matters in view of its conclusion below. It would note, however, that any such obligation, to inform and advise about the applicant's father's participation in the nuclear test programme and about a consequent risk to the applicant, would only relate to the period after the acceptance of the right of individual petition by the United Kingdom Government in January 1966.   65.    The Commission considers that in order for the applicant to establish a violation of Articles 2 and 3 (Art. 2,3) of the Convention, she must, at least, demonstrate that advice and information (pre- natally and post-natally) to the applicant's parents could have altered the fatal nature of her condition or the physical and consequent psychological impact of the disease.   66.    Accordingly, the Commission requested the parties' submissions as to whether advice and information given to the applicant's parents (between January 1966 and the date of diagnosis of her illness - "the relevant period") as regards the nature and impact of her father's participation in the nuclear test programme at Christmas Island and any consequent risk to the applicant's health, would have led to an earlier diagnosis of the applicant's illness. The parties were also asked whether such advice and information could have altered the course of that illness or the state of mind of the applicant as regards her illness. The state of the parties' submissions in this respect is noted above.   67.    The Commission notes that the applicant was approximately four and a half years old when her illness was diagnosed and it considers it reasonable to accept that earlier monitoring may have ensured that the applicant's illness could have been diagnosed earlier.   68.    However, the Commission does not consider that the applicant has demonstrated that such earlier diagnosis and consequent treatment could have altered the fatal nature of her illness in any way or changed the physical and the consequent psychological impact of the disease in any manner. The applicant has submitted, though not until 21 November 1996, an article entitled "Vincristine in the treatment of acute leukaemia in children" which was published in the October 1963 edition of the journal of the American Cancer Society. The article details the results of tests of a drug conducted in 1963 on children with acute leukaemia. However, the Commission notes the experimental nature of the treatment and that the remissions to which the article referred were temporary. It does not, in the Commission's opinion, constitute in any way a basis for the assertion that earlier diagnosis and treatment of the applicant during the relevant period would have altered the nature or course of her illness in any way. Other than this, no detailed submissions (including, for example, expert reports) were received from the applicant as to the state of medical knowledge as regards her illness during the relevant period or as to the treatment available for leukaemia during that period. Equally no such detailed submissions were received as to how the fatal nature of her illness could have been reversed, as to how the physical or consequent psychological impact of the illness could have been changed or as to the likelihood of such results due to earlier diagnosis.   69.    The Commission is prepared to accept that detailed and clear advice and information from the authorities as to the nature and impact of her father's participation in the test programme may have alleviated certain uncertainties and anxieties in the applicant's mind as regards the cause of her illness. However, the Commission recalls that in order to establish treatment contrary to Article 3 (Art. 3) of the Convention the applicant must establish that, in all the circumstances of the case, such uncertainties and anxieties in the absence of such advice and information attain a minimum level of severity (see, for example, Eur. Court HR, Ireland v. the United Kingdom judgment, loc. cit., p. 65, para. 162). However, the Commission does not consider that such uncertainties and anxieties arising out of a lack of information and advice amount, in the circumstances of this case, to treatment of a degree which the Convention organs accept as constituting treatment of an inhuman or degrading nature within the meaning of Article 3 (Art. 3) of the Convention.   70.    Accordingly, and whether or not Articles 2 and 3 (Art. 2,3) of the Convention would apply to the applicant's complaints and whether or not the submissions of the parties demonstrate the applicant's father's exposure to dangerous doses of radiation or any knowledge on the part of the authorities as to the consequent risk to the applicant's health, the Commission considers that the applicant's complaints do not disclose a violation of those Articles.         CONCLUSIONS   71.    The Commission concludes, unanimously, that in the present case there has been no violation of Article 2 (Art. 2) of the Convention.   72.    The Commission concludes, unanimously, that in the present case there has been no violation of Article 3 (Art. 3) of the Convention.           H.C. KRÜGER                          S. TRECHSEL            Secretary                            President      to th