Inadmissibility decision; Procedural issues: ratione temporis; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
Communication No. 499/1992, K. L. B.-W. v. Australia (decision
of 30 March 1993, adopted at the forty-seventh session)
Submitted by:
K. L. B.-W. (name deleted)
Alleged victim:
The author
State party:
Australia
Date of communication:
15 November 1991 (initial submission)
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 30 March 1993,
Adopts the following:
Decision on admissibility
1.
The author of the communication (dated 15 November 1991) is
Mrs. K. L. B.-W., an Australian citizen, born on 13 February 1942, currently
residing in London, England. She claims to be a victim of a violation by
Australia of articles 6, paragraph 1; 7; 9, paragraphs 1, 4, and 5; 10,
paragraph 1; 16; 17, paragraphs 1 and 2; and 26; juncto article 2, paragraphs
2 and 3 of the International Covenant on Civil and Political Rights. The
Optional Protocol entered into force for Australia on 25 December 1991.
Facts as submitted
2.1 The author states that she was pregnant in 1970 of her second child and
experiencing heart problems, perhaps linked to her mental state, as she was
going through a period of marital stress. She was referred to Dr. H. B., a
psychiatrist working at Chelmsford Private Hospital in New South Wales,
Australia. The author submits that her physical complaints were never taken
seriously, although later examination attributed the symptoms to a form of
diabetes.
2.2 In April 1970, the author collapsed after having taken her son to
school. She states that she awoke seven hours later in the psychiatrist's
office, attached to an ECG machine. That night she was admitted to
Chelmsford Private Hospital. She signed no admission papers, and was
allegedly injected with pentothal, which made her lose consciousness.
2.3 The author contends that she was subjected to a regime of
electroconvulsive therapy, being maintained in deep sleep therapy without
food, on drug dosages that exceeded forensic limits and without being given
muscle relaxants. She states that she was held against her will, sexually
abused by the psychiatrist and assaulted by the nurses. Her physical
problems were never attended to. After three weeks the author was released,
after her mother had threatened the hospital with legal action.
2.4 The author's second son was born on 25 July 1970. The author states
that the health of her son has always been and still is precarious. After a
thorough examination, when he was 13 years old, doctors allegedly found inter
alia that his nervous system and his muscle tissue had suffered as a result
of the electric currents passing through them at the vital stage in their
development. According to the author her son would need years of
physiotherapy to get even a reasonable development of the muscle tissue.
2.5 The author further provides information which shows that a governmental
investigation into abuses in Chelmsford Private Hospital was carried out in
1989. The results of the investigation show inter alia that 48 deaths had
occurred, in which a link with deep sleep therapy could be proven; that
Dr. H. B. was negligent and psychopathic in his treatment of patients; that
patients were not given proper care and were undernourished; and that the
Department of Health had not been careful enough in its supervision of the
Hospital. The Royal Commission, which had carried out the investigation,
recommended the criminal prosecution of the doctors involved.
2.6 The author concedes that she has not exhausted domestic remedies, but
claims that the application of domestic remedies would be unreasonably
prolonged, within the meaning of articles 5, paragraph 2, of the Optional
Protocol. She states that Dr. H. B. committed suicide in 1985; none of the
other doctors have been prosecuted; they are still in practice. She submits
that court action has been initiated by some of the victims of malpractice at
Chelmsford, to no avail; these cases have been before the Court for over
10 years. She estimates the litigation costs at $250,000 per suit and
submits that no victim can afford this.
2.7 The author claims that the medical profession is a powerful political
force in Australia, preventing the victims from obtaining an effective
remedy, either through the courts or through an ex gratia payment by the
government. She further submits that, because of the time lapse, much of the
evidence is missing and witnesses have died or become senile. She points out
that her case is now 21 years old, and that the length of time that has
transpired has deeply and intrinsically restricted any effective opportunity
for reasonable remedy.
2.8 The author states that she has applied to the Victims Compensation
Tribunal, which can assess compensation for victims of violent crimes.
However, none of the doctors have been convicted as yet, and the author does
not expect to obtain effective compensation through the Tribunal.
2.9 She claims that the New South Wales government should give ex gratia
payments to the victims, which, however, it refuses to do. She concedes that
the Legislative Assembly, on 21 December 1991, agreed to a motion, providing
for $10 million to compensate 200 out of the alleged 1,700 victims of the
malpractices at Chelmsford. The author claims, however, that this does not
constitute an effective remedy, as the amount is not sufficient and as it is
not clear who would qualify for the compensation.
Complaint
3.
The author alleges that the failure of the New South Wales government to
provide an adequate remedy for the maltreatment she suffered constitutes an
ongoing violation by Australia of articles 6, paragraph 1; 7; 9, paragraphs
1, 4, and 5; 10, paragraph 1; 16; 17, paragraphs 1 and 2; and 26; juncto
article 2, paragraphs 2 and 3 of the International Covenant on Civil and
Political Rights.
Issues and proceedings before the Committee
4.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
4.2 The Committee recalls that the Optional Protocol entered into force for
Australia on 25 December 1991. It observes that the Optional Protocol cannot
be applied retroactively and that the Committee is therefore precluded
ratione temporis from examining events that occurred prior to
25 December 1991, unless they continue after the entry into force of the
Optional Protocol or have effects that in themselves constitute a violation
of the Covenant. Accordingly, the Committee finds that it is precluded
ratione temporis from examining the author's allegations.
5.
The Human Rights Committee therefore decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the author and, for
information, to the State party.
[Done in English, French and Spanish, the English text being the original
version.]