CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 septembre 1991

.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. 15199/89                       by Nazir CHINOY                       against the United Kingdom           The European Commission of Human Rights sitting in private on 4 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                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 26 June 1989 by Nazir CHINOY against the United Kingdom and registered on 6 July 1989 under file No. 15199/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to:   -        the Commission's decision of 14 January 1991 to bring the         application to the notice of the respondent Government and         to invite them to submit written observations on its         admissibility and merits;   -        the observations submitted by the respondent Government         on 17 May 1991 and the applicant's observations in reply         submitted on 25 June 1991;           Having deliberated;           Decides as follows:         THE FACTS           The applicant is a citizen of Pakistan, born in 1933.   He is a bank employee.   He is represented by Mr.   Clive Nicholls QC, Mr.   R. A. Jones QC and Mr.   J. P. Gardner, instructed by Reynolds Dawson, solicitors.           The facts of the case may be summarised as follows :           On 4 October 1988 the applicant was indicted by a federal grand jury in Tampa, Florida (United States of America) with charges relating to conspiring to possess cocaine with intent to distribute, conspiring to launder drugs money and knowingly laundering drugs money.    By Diplomatic Note No. 83 of 7 October 1988, the Government of the United States of America requested the applicant's extradition under the terms of the Extradition Treaty between the United States and the United Kingdom of 1972, incorporated in the United States of America (Extradition) Order 1976 S.I. 1976 No. 2144.   The note gave details of the charges against the applicant and requested his provisional arrest for the purposes of extradition.   On 8 October 1988 a stipendiary magistrate at Bow Street Magistrates Court issued a provisional warrant for the applicant's arrest under the provisions of Section 8 of the Extradition Act 1870.           On 11 October 1988 the applicant, having arrived in London on 8 October 1988 from his place of work and residence in Paris, was informed that a warrant for his arrest existed.   The next day he surrendered himself and was remanded in custody.           On 12 December 1988 the Secretary of State for the Home Department issued an order to proceed under Section 7 of the Extradition Act 1870, signifying that a requisition had been made to him and commanding a magistrate at Bow Street to proceed under the Extradition Acts 1870-1935.   Committal proceedings opened on 4 April 1989 before a stipendiary magistrate.   The evidence adduced by the Government of the United States included affidavits made by a senior special agent of the United States Customs Service (Enforcement Division), and transcripts of conversations involving the applicant and others.   The conversations had been recorded in France on 20 and 24 May 1988 and 23, 25 and 26 September 1988 by the special agent without the knowledge of the applicant.   The conversation of 25 September 1988 involved the applicant's wife and children.   The parts involving those members of his family take up eleven of the thirty-seven pages of the transcript.   The Government submit, and the applicant does not contest, that the tape involving the members of his family was not played in court.   It is not known whether it was referred to expressly.   The Government emphasise that "it would only have been referred to if one of the parties had considered it to be relevant to the issues in the case, which it was not".           At the outset of proceedings counsel on behalf of the applicant asked the Government of the United States to state what, if any, authority their agents or their superiors had to conduct a criminal investigation on French territory and, more particularly, to record the conversations in France disclosed in the evidence. Counsel on behalf of the Government of the United States declined to answer the question.         The applicant adduced expert evidence from Professor Soyer of the University of the Sorbonne, Professor Pradel of the University of Poitiers and Mr.   E. Brochier, a partner in the law firm of Darrois-Villey, to the effect that the investigation was carried out without the knowledge of the French authorities, in breach of French sovereignty and without resort to the accepted procedures governing mutual assistance between the respective governments.   The expert evidence also concluded that the recording of the conversations, both at meetings and on the telephone, constituted offences contrary to Article 368 of the French Criminal Code and that the dissemination of the recordings was contrary to Article 369 of that Code.   In connection with the alleged illegality of the recordings, the applicant lodged a complaint constituting himself as a civil party claiming damages before the Tribunal de Grande Instance in Paris.   The proceedings resulted in a "non-lieu" after the refusal of the United States authorities to reply to a commission rogatory.           In the course of the proceedings before the Commission the Government submitted evidence which had been used in the United States proceedings against the applicant's colleagues.   That evidence, comprising a report by Mr.   J. Boré and Mr.   C. Xavier, lawyers at the French Conseil d'Etat and the Court of Cassation, concluded that Article 368 of the Criminal Code did not apply to business life, or to the commission of offences.   Moreover, the report went on, even if the method of taking the evidence (the tape recording) was illegal, the evidence would not, of itself, be unusable:   the judge would have to decide in each case.   The report also considered the position under the Convention.           The magistrate at Bow Street considered, inter alia, Section 78 (1) of the Police and Criminal Evidence Act 1984 which provides as follows:   "In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."   He found:   "I am not concerned with breaches of French law or sovereignty however crucial to a French court in receiving this evidence.   I say in these difficulties and dangers facing investigators in uncovering such offences, the methods used were in my view legitimate in International Law.   They were not agents provocateurs because it can properly be inferred that the conspiracy was well underway at the time of obtaining the confessions.   I am satisfied that I should not exercise my discretion to exclude that evidence accordingly."           The magistrate also considered whether the conspiracies constituted extraditable offences and found that (save in respect of one charge relating to actual drug trafficking) all charges were extraditable.   On 4 May 1989 an order was made under Section 10 of the Extradition Act 1870 that the applicant be committed to prison to await a warrant of a Secretary of state for his surrender.           On 2 February 1990, the Divisional Court granted bail to the applicant.           On 9 August 1990 Lord Justice Farquharson and Mr.   Justice Nolan, sitting as a Divisional Court of the High Court of Justice, considered the applicant's habeas corpus application by way of appeal against the committal order.   Mr.   Justice Nolan, giving the judgment of the Divisional Court, stated:   "...   If (subject to section 78 of the Police and Criminal Evidence Act) evidence unlawfully obtained in England is admissible, as Sang [(1980) A.C. 403] declares, then why should a different rule apply with regard to evidence obtained unlawfully in another country? As I see it, the governing principle which applies no matter wherever and however the evidence has been obtained is that stated by Lord Diplock in Sang at page 437 where he said:     'However much the judge may dislike the way in    which a particular piece of evidence was obtained    before proceedings were commenced, if it is admissible    evidence probative of the accused's guilt it is no    part of his judicial function to exclude it for this    reason.'     ...It has always been the law that prosecution evidence may be excluded for other reasons...   Another reason, to which I now turn, is that introduced into our law by the enactment of Section 78 of the Police and Criminal Evidence Act 1984. It has been common ground before us that Section 78 applies to extradition proceedings no less than to domestic proceedings.   There follows the question how far it affects the law as laid down in Sang...   ...   So, too, in the present case should any breaches of French law and of the European Convention on Human Rights.   All of these form part of the circumstances in which the evidence was obtained.   For these reasons, it becomes necessary to consider whether the magistrate was correct in ruling, as he did, that the evidence should be admitted.     ...   I would not, for my part, agree that the admitted breaches* of French criminal law were irrelevant.   As I have said, they formed part of the circumstances in which the evidence was obtained.   I would, however, for reasons already indicated, regard the magistrate as being fully entitled to take the view that, in all the circumstances of the case, these breaches could carry no more weight than breaches of English law and therefore did not constitute a sufficient reason for excluding the evidence.   _____ * The Government submit that the breaches were not admitted, but that   they were not contested and, in the absence of contrary evidence,   the Divisional Court assumed that they had taken place. On substantially the same grounds, I consider that the magistrate was fully entitled to reach his second and rather broader conclusion that in view of the difficulties and dangers facing investigators in uncovering offences of the kind with which the applicant is charged, the methods used were legitimate.   I do not think that it really matters whether the magistrate described them as being legitimate according to English law or to International Law.   It is sufficient if they were legitimate by reference to English law.   Our law has always acknowledged the fact, unpalatable as it may be, that the detection and proof of certain types of criminal activity may necessitate the employment of underhand and even unlawful means.   In the present case the respondent Government and its agents have committed no breach of English law, and I can find no fault with the magistrate's decision, in the context of Section 78, that the means employed by Mr.   Mazur and his colleagues were appropriate to the situation which they were investigating, and did not require the exclusion of the evidence obtained." _______           On 3 December 1990 the House of Lords refused leave to appeal to that House.           Bail was extended on 10 December 1990.   In the course of the proceedings counsel for the United States of America stated that the French Customs and Excise had consented to the activities of the American agents.           On 21 January 1991 the Order for surrender was issued.   Leave to apply for judicial review of the order was granted on 23 January, but that leave was set aside by the Divisional Court on 10 April 1991.   The applicant was surrendered to the US authorities on 20 April 1991.   COMPLAINTS           The applicant complains that his right to respect for his private life, home, family and correspondence has been interfered with contrary to Article 8 of the Convention.   That interference consisted in the use made, by authorities and courts of the United Kingdom, of clandestine and flagrantly unlawful tape recordings of conversations on the telephone and in person with himself and members of his immediate family.   The applicant specifically refers to the existence of an interference at every stage of the United Kingdom's involvement with the tapes, that is, from the existence of machinery for the receipt of the tapes by the authorities, the actual receipt and subsequent internal use of the tapes in processing and assessing the case, to the reliance on and use of the tapes in processing and assessing the case, to the reliance on and use of the tapes in the extradition proceedings.   He also complains that he has no remedy before a national authority in respect of this complaint, contrary to Article 13.           The applicant also, by way of complaints raised for the first time in correspondence on 9 November 1990, alleges a violation of Article 5 of the Convention.   He submits inter alia that the requirements of Article 5 exclude the possibility of detention continuing on the basis of evidence which, although not unlawful in domestic terms, is considered unlawful under the domestic law of a third Contracting State, which may have been obtained in violation of that State's sovereignty, which is considered to be in violation of the Convention and which is the sole evidence justifying that detention.           He also alleges a violation of Article 5 para. 4 of the Convention, contending that the scope of the proceedings was too limited.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 26 June 1989 and registered on 6 July 1989.           On 14 January 1991 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits. Pursuant to a request by the respondent Government, on 27 March 1991 the President agreed to an extension of the time limit for submission of the respondent Government's observations to 27 May 1991.   Following requests from the applicant in correspondence of 12, 15, 16, 18 and 19 April 1991, the Commission decided on 19 April 1991 not to indicate to the respondent Govenment that the applicant should remain in the United Kingdom until such time as the Commission should determine, but to request the Government to use their best endeavours to submit their observations in the case by 20 May 1991.           The Government submitted their observations on 17 May 1991 and the applicant's observations in reply were submitted on 25 June 1991.   THE LAW   1.       The applicant alleges a violation of Article 8 (Art. 8) of the Convention which provides as follows:   "1.       Everyone has the right to respect for his private and family life, his home and his correspondence.   2.       There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."           The Commission notes that the weight of the applicant's complaints rests on the "flagrant illegality", under French law and under the Convention, of the making of the tape recordings of conversations with him and, in one case, him and members of his family.           The Commission recalls that there is conflicting evidence as to the unlawfulness under French law of recording business, and possibly criminal, conversations.   The domestic authorities in the United Kingdom (in particular the Divisional Court on 9 August 1990) assumed that unlawfulness of the tape recordings was admitted, no evidence to the contrary having been adduced.   It is not for the Commission to determine which of the views as to French law put forward is correct.   Nor is it for the Commission to determine in this case whether the recording of the conversations involved a violation of the Convention by France.   It has not been established whether the French authorities were or were not aware, and if so to what extent, of the activities of the United States agents, nor have the French courts had the opportunity to consider the matter.   Furthermore, the present application has been brought against the United Kingdom. Accordingly, the Commission will deal with this application not in the context of clearly established (or admitted) unlawfulness of the recording under the Convention or under French law, but on the assumption that doubt persists as to such lawfulness.           The Government consider that the applicant's real concern in the present application is not any interference which may have taken place with his private or family life, but the fact that he was detained for the purposes of being extradited.   Accordingly, they consider that Article 5 (Art. 5) in fact is the most appropriate Article to deal with the applicant's complaints.   In the alternative, they consider that the very limited use of the recordings was "in accordance with the law" in the sense that it accorded with domestic law and that it did not amount to an arbitrary interference by the United Kingdom authorities with the applicant's private and family life.   As to whether any interference was "necessary in a democratic society", the Government refer to the manifest harm caused by the trade in South American drugs and the difficulties and dangers faced by those who investigate and prosecute the criminals involved in such trade.   Moreover, the Government have treaty obligations to extradite certain categories of persons.           The Commission must consider what use was made of the tape recordings, and how that use affected the applicant and his rights under Article 8 (Art. 6) of the Convention.           The Commission notes, first of all, that the recordings at issue were not made by or with the consent of the United Kingdom authorities.   At most the present application covers the use of the recordings in the context of the extradition proceedings against the applicant.   In this context, the sole recording which concerned the applicant's family, that is, the relevant part of the tape of the conversation of 25 September 1988, was not, in fact, played in any courts in the United Kingdom.   Moreover, although the transcript of that tape was available to the courts, it has not been submitted that the transcript was read out or otherwise available to the public during the proceedings.           Accordingly, the "use" made by the United Kingdom authorities of all the tapes and transcripts was limited to receipt of the materials from the United States authorities, examination of the material as to its relevance in the extradition proceedings, and production of the relevant parts as evidence in these proceedings.           The Commission recalls that in the case of Schenk (Eur.   Court H.R., judgment of 2 July 1988, Series A no. 140 p. 29, para. 46) the European Court of Human Rights found that it could not be excluded "as a matter of principle and in the abstract that unlawfully obtained evidence ... may be admissible".   That was in the context of Article 6 (Art. 6) of the Convention, and the Court there found no violation of that provision.   As to Article 8 (Art. 8), the Court found that "...nothing would prevent the Court from considering the question of the use made of the recording.   However, this is not necessary in the instant case, as the issue is subsumed under the question (already dealt with from the point of view of Article 6 (Art. 6)) of the use made of the cassette during the judicial investigation and the trial." (Eur. Court H.R., judgment of 2 July 1988, Series A no. 140, p. 31, para. 53).           The complaints in the present case are of the retention and use by the United Kingdom authorities of tapes and transcripts made, without the knowledge of the United Kingdom authorities, perhaps unlawfully, in France.   The material formed a vital part in the proceedings concerning the applicant's extradition to the United States of America.   The transcripts and tapes which were used in open court related solely to business matters.           The Commission recalls that the purpose of Article 8 (Art. 8) of the Convention is to secure to everyone, "the right to respect for ... private and family life, ... home and ... correspondence".   The Commission finds that it is unnecessary to determine in this case whether the production in judicial proceedings of material relating to private and family life, home and correspondence, and to the outcome of these proceedings, can, in principle, constitute an interference with the right defined in Article 8 para. 1 (Art. 8-1).   The purpose of the extradition proceedings in which the United Kingdom authorities were involved was to further the international campaign against the drugs trade and the laundering of the proceeds of drug trafficking, and those proceedings were pursuant to the United Kingdom's international treaty obligations (in this case to the United States of America).   Moreover, while the unlawfulness alleged in respect of the recordings in the present case is, at least, in some doubt, the domestic courts clearly considered the evidence of the tapes and transcripts to be relevant.   In these circumstances, the Commission finds that the use made by the United Kingdom authorities in the present case of the recordings of the applicant's conversations does not disclose any lack of respect for his private and family life, his home or his correspondence.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.        The applicant also alleges a violation of Article 5 para. 1 (Art. 5-1) of the Convention.   He considers that the unlawfulness of the tape recordings so taints the lawfulness of detention that the detention itself was rendered unlawful within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention.           Article 5 para. 1 (Art. 5-1) of the Convention provides, so far as relevant, as follows:     "1.      Everyone has the right to liberty and security of person.   No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:   ...           (f)      the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition."           The Government submit that the use of the recordings, even if it involved unlawfulness under French law and/or the Convention, was in no way arbitrary, especially bearing in mind that the Convention contains no express or implied requirement that evidence obtained unlawfully under domestic law must be ruled inadmissible.           In order to be justified under Article 5 para. 1 (Art. 5-1), the detention of the applicant must comply with one of the - exhaustively enumerated - conditions set out in Article 5 para. 1 (Art. 5-1).   Only Article 5 para. 1 (f) (Art. 5-1-f) is at issue in the present case.           The Commission recalls that the existence of extradition or deportation proceedings is the sole justification for detention under Article 5 para. 1 (f) (Art. 5-1-f) (cf.   No. 8081/77, Dec. 12.12.77, D.R. 12 p. 207, 209 with further references).   The applicant was initially detained from his arrest on 12 October 1988 until 2 February 1990, when he was released on bail by the Divisional Court.   He was again detained in custody before being surrendered to the United States authorities on 20 April 1991.   The applicant's original detention, from 12 October 1988, was made pursuant to a provisional warrant issued by a magistrate on 8 October 1988.   This warrant was granted pursuant to a request by the United States authorities by way of diplomatic note of 7 October 1988 and does not refer to the contested recordings at all. Accordingly, this initial detention was clearly justified under Article 5 para. 1 (f) (Art. 5-1-f) of the Convention.           The order to proceed of 12 December 1988, on the other hand, was based on a consideration of the contested recordings.   The question therefore arises as to what extent the alleged unlawfulness of evidence falls to be considered under Article 5 para. 1 (f) (Art. 5-1-f) of the Convention.   The European Court of Human Rights has held, in the context of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention :   "On the question whether the detention is "lawful" including whether it complies with "a procedure prescribed by law", the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof.   However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (Art. 5), namely to protect individuals from arbitrariness."   (Wassink judgment of 27 September 1990, Series A no. 185-A, p.11, para. 24)           There is no indication in the present case that the procedural or substantive rules of domestic law were infringed.   Moreover, although the domestic courts appear, in the absence of evidence to the contrary, to have accepted as admitted that the recording of the evidence was in fact in violation of French law and/or of the Convention, the Commission has already found that this cannot be accepted as the final conclusion, either as to French law or as to the Convention.   Moreover, the domestic courts considered that breaches of French law and/or the Convention "could carry no more weight than breaches of English law".           The Commission finds no indication of arbitrariness in the decision of the United Kingdom courts to admit evidence which may have been obtained, and appears to have been accepted by the domestic courts as having been obtained, in breach of French law and/or the Convention.           It follows that at all relevant times the applicant's detention was covered by Article 5 para. 1 (f) (Art. 5-1-f) of the Convention and this part of the application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant alleges a violation of Article 13 (Art. 13) of the Convention in connection with Article 8 (Art. 8).   However, the guarantees of Article 13 (Art. 13) apply only to a grievance which can be regarded as "arguable" (cf.   Eur.   Court H.R., Powell and Rayner judgment of 21 February 1990, Series A no. 172, p. 14, para. 31, with further references).   In the present case, the Commission has declared the substantive claims under Article 8 (Art. 8) manifestly ill-founded.   For similar reasons, it cannot be regarded as "arguable".           It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.   4.       Finally, the applicant alleges a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   This provision reads as follows:           "4.   Everyone who is deprived of his liberty by arrest         or detention shall be entitled to take proceedings by         which the lawfulness of his detention shall be decided         speedily by a court and his release ordered if the         detention is not lawful."           The applicant submits that the United Kingdom courts are unable to consider the compliance of the extradition proceedings with the Rule of Law within the meaning of this provision.           The Commission notes that the stipendiary magistrate and the Divisional Court took extensive evidence from the applicant.   The Divisional Court, inter alia, assumed in the applicant's favour that it was possible to stay extradition proceedings for abuse of process of the court, and also accepted that Section 78 (1) of the Police and Criminal Evidence Act 1980 gave discretion to the magistrate to exclude evidence if its prejudicial effect outweighed its probative value.           Accordingly, the applicant has not substantiated in what way the scope of the remedy open to him could be said to be wanting.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission             President of the Commission            (H.C. KRÜGER)                          (C.A. NØRGAARD)