CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mars 1990

.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. 16137/90                       by BUI VAN THANH and Others                       against the United Kingdom             The European Commission of Human Rights sitting in private on 12 March 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 12 January 1990 by Bui Van Thanh and Others against the United Kingdom and registered on 1 February 1990 under file No. 16137/90;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicants in the present application are as follows:       Mr.   BUI VAN THANH            born on 20 April 1969                                 in Quang Ninh, Vietnam;       Mr.   CAO NGOC HUYNH           born in 1955 in Hai Phong, Vietnam;       Mr.   NGUYEN BA DAI            born on 21 December 1965 in                                 Ngo Mag, Quinhon, Vietnam:       Mr.   NGUYEN QUOC LOC       Mr.   NGUYEN THANH QUANG       born on 12 November 1965                                 in Cham Pha, Quang Ninh, Vietnam;       Mrs NGUYEN THI MINH HUONG    born on 20 January 1965 in                                 Hai Phong, Vietnam;       Mrs NGUYEN THI KE            born on 28 April 1951 in                                 Ha Noi, Vietnam;       Mr.   NGUYEN TIEN MINH         born on 2 April 1969 in                                 Hon Gai, Quang Ninh, Vietnam;       Mr.   NGUYEN VAN BINH          born on 5 January 1955 in                                 Cua Ong, Vietnam;       Mr.   TRUONG VIET CAC          born on 15 April 1965 in                                 An Duong, Phu-Than, Huong Phu,                                 Vietnam.           The applicants are represented in the proceedings before the Commission by Mr.   Johan van Lamoen, legal adviser, Paris.           The applicants who are at present detained in Chi Ma Wan Detention Centre arrived in Hong Kong sometime after 16 June 1988. All of the applicants are former residents of Vietnam who do not hold a valid travel document.   Prior to 16 June 1988 Vietnamese "Boat People" landing in Hong Kong were automatically deemed to be refugees and were accordingly granted asylum on the understanding that they would re-settle elsewhere.           Following a change in policy, the applicants were treated as illegal immigrants unless they could prove that they were refugees within the meaning of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol.           Each of the applicants has had his or her claim considered by the Director of Immigration, pursuant to Section 13 A(1) of the Immigration Ordinance and rejected on the basis that they had no well founded fear of persecution in Vietnam, within the terms of the 1951 Convention.   In consequence, they were detained in Detention Centres pending their removal from Hong Kong to Vietnam.           The applicants applied to the Refugee Status Review Board to review the decision of the Director of Immigration in accordance with Section 13 F(1) of the Immigration Ordinance.   The Review Board upheld the findings of the Director of Immigration and determined that they should continue to be detained pending their removal from Hong Kong.   Apart from a statement that they were not considered to be refugees within the meaning of the 1951 Convention, no reasons were given to support or justify the decision.   The decision of the Review Board is stated not to be subject to a review or appeal in any court.           The United Kingdom have not made a declaration under Article 63 para. 1 extending the Convention to Hong Kong.           In the United Kingdom's instrument of acceptance of the right of individual petition dated 14 January 1966 the following statement appears:   "This declaration does not extend to petitions in relation to anything done or occurring in any territory in respect of which the competence of the European Commission of Human Rights to receive petitions has not been recognised by the Government of the United Kingdom or to petitions in relation to anything done or occurring in the United Kingdom in respect of such a territory or of matters arising there."           The declaration of 14 January 1966 is incorporated by reference in the United Kingdom's most recent renewal of the right of individual petition dated 14 January 1986.   COMPLAINTS   1.       The applicants complain that their forcible return to Vietnam will be contrary to Article 3 of the Convention in that each of them will be subjected to a real risk of inhuman or degrading treatment or punishment.   They all allege that they will be subject to persecution by the Communist regime in Vietnam.   They point out that illegal departure from the homeland constitutes treason, punishable under the Vietnamese Penal Code, following proceedings before courts that are not independent.   They further submit that all property left behind in Vietnam has been confiscated by the authorities and will not be returned to them.           The applicants criticise the screening process to which they were subjected in order to determine whether they were refugees.   They state that little was established in relation to the historical background and personal origins of each applicant.   Interpreter qualifications were poor and many translation mistakes were made.   No procedure existed to record the interview, resulting in distorted, mistranslated and unbalanced information being recorded as fact. They refer to criticisms which have been made of the screening process by inter alia the Bar Committee and Council of the Law Society of Hong Kong and Amnesty International.   2.       The applicants further submit that their detention is not justified under Article 5 para. 1 (f) of the Convention.   They claim that their detention is arbitrary and unrelated to the prospect of removal to Vietnam.   They claim that Hong Kong law permits detention for only a limited period.   3.       The applicants point out that other aliens under the Immigration Ordinance may not be detained unless there is a risk that they might abscond or that they constitute a threat to national security.   They can only be detained for limited periods subject to proper administrative review.   The applicants complain that they are therefore the victims of discrimination, contrary to Article 14 of the Convention in conjunction with Article 5 para. 1 (f).   4.       The applicants further complain under Articles 3 and 8 of the Convention that their conditions of detention in Chi Ma Wan Detention Centre constitute inhuman and degrading treatment and are in breach of their right to respect for their private and family life.   They state that they are living in overcrowded barracks in cramped and unhygienic circumstances which do not permit even a minimum level of privacy. They note that many human rights organisations have denounced the intolerable conditions in Chi Ma Wan Detention Centre and in other detention centres throughout Hong Kong.   5.       The applicants further complain that they are unable to challenge the lawfulness of their detention before a court in breach of Article 5 para. 4 of the Convention.   6.       Finally, the applicants complain that they do not enjoy an effective remedy, as required by Article 13 of the Convention, in respect of their complaint under Article 3 concerning their forcible repatriation to Vietnam and under Articles 3 and 8 regarding the conditions of detention in Chi Ma Wan Detention Centre.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 12 January 1990 and registered on 6 February 1990.   The Commission first examined the application on 10 February 1990 and refused an application that the United Kingdom be requested, under Rule 36 of the Commission's Rules of Procedure, not to deport the applicants to Vietnam pending an examination of the application.   THE LAW           The applicants, who are detained in detention camps in Hong Kong, complain that their forcible return to Vietnam will be contrary to Article 3 (Art. 3) of the Convention.   They also complain that their detention in Hong Kong is unrelated to the prospect of removal to Vietnam and is thus not justifiable under Article 5 para. 1 (f) (Art. 5-1-f) of the Convention.   Further, they complain under Article 14 in conjunction with Article 5 para. 1 (f) (Art. 14+5-1-f) that they are being discriminated against in comparison with other aliens who may not be detained under the relevant law unless there is a risk inter alia that they might abscond.   The applicants also complain under Articles 3 (Art. 3) and 8 (Art. 8) of the Convention that their conditions of detention in Chi Ma Wan Detention Centre are characterised by serious over-crowding and lack of proper hygiene in circumstances which permit little privacy.   They complain further that they are unable to challenge the lawfulness of their detention before a court in Hong Kong, contrary to Article 5 para. 4 (Art. 5-4) of the Convention.   Finally, the applicants complain under Article 13 (Art. 13) of the Convention that they have no effective legal remedy under Hong Kong law in respect of their complaints relating to their fear of persecution in Vietnam and their conditions of detention in Hong Kong under Articles 3 (Art. 3) and 8 (Art. 8) of the Convention.           The applicants state that they are aware that the United Kingdom have not made a declaration under Article 63 para. 1 (Art. 63-1) of the Convention extending the Convention to the territory of Hong Kong.   However, they submit that the Commission has jurisdiction to examine their complaints since the policy of the forcible repatriation of    Vietnamese refugees is in reality the policy of the United Kingdom   and since the Hong Kong authorities exercise their functions on the basis of decisions taken by the United Kingdom.   They point, in this respect, to the presence of a high-ranking Whitehall official who,   they claim, acts as the Vietnamese Refugee Co-ordinator stationed in Hong Kong, as well as to discussions in the House of Commons and declarations of United Kingdom officials.   They also refer to various decisions of the Commission concerning Contracting Parties' responsibilities under the Convention in respect of matters which occur outside their territory but within their jurisdiction within the meaning of Article 1 (Art. 1) of the Convention (inter alia No. 6231/73, Hess v. the United Kingdom, Dec. 28.5.75, D.R. 2 pp. 72-73;   Nos. 6780/74 and 6950/75, Cyprus v. Turkey, Dec. 26.5.75, D.R. 2 pp. 125, 137).           The relevant provisions of Article 63 (Art. 63) provide as follows:   "1.   Any State may at the time of its ratification or at any time thereafter declare by notification addressed to the Secretary General of the Council of Europe that the present Convention shall extend to all or any of the terrritories for whose international relations it is responsible.   ...   4.    Any State which has made a declaration in accordance with paragraph 1 (Art. 63-1) of this Article may at any time thereafter declare on behalf of one or more of the territories to which the declaration relates that it accepts the competence of the Commission to receive petitions from individuals, non-governmental organisations or groups of individuals in accordance with Article 25 (Art. 25) of the present Convention."           The Commission notes that the applicants' complaints concern essentially the acts of the Hong Kong authorities and the relevant provisions of Hong Kong immigration law.   Such matters, however, could not be the subject of examination by the Commission since the United Kingdom have not made any declarations under Article 63 paras. 1 (Art. 63-1) and 4 (Art. 6-4) extending the Convention to Hong Kong and accepting the competence of the Commission to receive petitions in respect of matters occurring within that territory.           The Commission has had regard to the applicant's submissions that the acts of the Hong Kong authorities are based on United Kingdom policy with the consequence that the matters complained of by the applicants fall within the jurisdiction of the United Kingdom for purposes of Article 1 (Art. 1) of the Convention.           The Commission notes that Article 1 (Art. 1) of the Convention provides that "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention".   It is clear from the case-law of the Commission that the concept of jurisdiction in Article 1 (Art. 1) is not limited to the territory of a High Contracting Party and may extend in certain circumstances to matters which occur outside their territory   (see e.g. Nos. 6780/74 and 6950/75, Cyprus v. Turkey, loc. cit.).           However the Convention system also provides the State with the option of extending the Convention to territories for whose international relations it is responsible by lodging a declaration under Article 63 para. 1 (Art. 63-1) of the Convention, with the result that matters relating to such territories fall within the jurisdiction of the High Contracting Party within the meaning of Article 1 (Art. 1) of the Convention.   It is an essential part of the scheme of Article 63 (Art. 63) that a declaration extending the Convention to such a territory be made before the Convention applies either to acts of the dependent Government or to policies formulated by the Government of a Contracting Party in the exercise of its responsibilities in relation to such territory.   Accordingly, in the present case even if the Commission were to accept that the acts of the Hong Kong authorities were based on United Kingdom policy, it must find that it has no competence to examine the application since no declaration under Article 63 para. 1 (Art. 63-1) has been made in respect of Hong Kong.           It follows that the application is incompatible ratione loci with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE     Secretary to the Commission          President of the Commission         (H. C. KRÜGER)                        (C. A. NØRGAARD)