CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 1992

.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 }                                 FIRST CHAMBER                       Application No. 19319/92                       by L.O.                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 2 September 1992, the following members being present:                MM.   J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   E. BUSUTTIL              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First Chamber              assisted by Mrs. S. DOLLE           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 19 November 1991 by L.O. against the United Kingdom and registered on 9 January 1992 under file No. 19319/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of    the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant was born in 1931 in Penang, Malaysia, but he claims to be the holder of a Liberian diplomatic passport.   He is a businessman by profession.   He is currently detained in the United Kingdom awaiting his extradition to Hong Kong.   In the proceedings before the Commission the applicant is represented by Mr. J.P. Gardner, Solicitor, and Mr. R. Johnson, Solicitor with Messrs. Blakemore, Birmingham.         This is the applicant's third application to the Commission.   His first, No. 14037/88, in which he complained that his extradition to Hong Kong would be in breach of Articles 3 and 7 of the Convention, was rejected by the Commission on 13 March 1989 as being manifestly ill-founded.   In his second application, No. 15933/89, he complained of his protracted detention (over 5 years) pending extradition and the refusal of bail, as well as the length of the extradition proceedings and the four habeas corpus applications he made.   He alleged that he would receive an unfair trial if returned to Hong Kong.   He invoked Article 5 paras. 1 (f), 2, 3 and 4, Article 6 para. 1 and Article 8 of the Convention.   On 14 January 1991 the Commission declared that application inadmissible as being manifestly ill-founded in the exceptional circumstances of the case.         The facts of the present case, as submitted by the applicant, may be summarised as follows:         On 30 November 1985 a warrant was issued by a Hong Kong Magistrate for the applicant's arrest on 16 charges of fraud.   The applicant was arrested in London on 6 December 1985, pursuant to a provisional warrant issued by a London Magistrate on 2 December 1985 under section 6 (1) of the Fugitive Offenders Act 1967.   A further Hong Kong warrant was issued on 20 January 1986 increasing the charges to 29.   On 21 January 1986 the applicant's extradition was requested by the Governor of Hong Kong and on 24 January the Secretary of State in the United Kingdom issued an authority to proceed.   Extradition proceedings against the applicant were heard at Bow Street Magistrates Court and resulted in an order of committal against the applicant being made on 1 June 1987 to await the order of the Secretary of State effecting his surrender to the authorities of Hong Kong.   The Fugitive Offenders Act 1967 provides for the lawfulness of such committal orders to be challenged by way of habeas corpus proceedings.   The applicant issued proceedings for habeas corpus on 10 June 1987, 8 June 1988, 6 June 1989, 2 February 1990, 27 February 1991 and on or about 30 July 1992.   The present application concerns the issues which were raised in the fifth of these.         The fifth habeas corpus application came before a Divisional Court of the Queen's Bench Division on 12 and 13 May 1991.   The applicant contended in those proceedings that the arrangements with regard to specialty which had been made between the Hong Kong authorities and the United Kingdom were inadequate as a matter of English law.   On 26 April 1991 the Hong Kong authorities had issued an undertaking to respect the specialty principle under the relevant United Kingdom legislation, section 6 (4) of the Extradition Act 1989, and not to prosecute the applicant for an offence other than           "(a) the offences in respect of which his return is ordered;         (b)   an offence other than an offence in relation to which an            order for his return could not lawfully be made, which is            disclosed by the facts in respect of which his return is            ordered; or         (c)   any other offence being an extradition crime, other than an            offence in relation to which it appears to Her Majesty's            Principal Secretary of State for the Home Department, an            order for his return could not lawfully be made or would            not in fact be made, in respect of which Her Majesty's            Principal Secretary of State may consent to his being dealt            with."         The applicant submitted to the Divisional Court that the undertaking cannot provide him with adequate specialty protection in view of the undisputed fact that, if he is returned to Hong Kong and convicted, he will serve a sentence which will not have expired on 1 July 1997 when the People's Republic of China takes over Hong Kong. The United Kingdom has no extradition arrangement with China and the Hong Kong Basic Law contains no provision on this point.   However, the Divisional Court held that section 6 (4) of the Extradition Act 1989 "cannot and does not contemplate anything more than a specialty protection such as was offered in this case", as "no State can give an undertaking beyond its own sovereign powers, nor can the United Kingdom require a State to give an undertaking to bind a different State". Leave to appeal against this decision was refused by the House of Lords on 25 July 1991.         The next stage of the extradition procedure concerned the Secretary of State's decision of 15 June 1992 to surrender the applicant to the Hong Kong authorities.   The applicant had made written representations on 12 June 1992 to the Secretary of State, enclosing, inter alia, his application to the Commission and setting out his submissions why in his view his surrender would be unlawful and in breach of the Convention.   In particular he contended that the absence of specialty protection is contrary to the standard imposed by public international law recognised in the practice of European States and safeguarded by Article 5 para. 1 (f) of the Convention which prohibits unlawful extradition.   A personal letter was submitted to the Secretary of State on the early afternoon of 15 June 1992 but the Secretary of State decided to surrender the applicant and cancelled a meeting he was to have had with a delegation of Members of Parliament making representations on the applicant's behalf the following day.         The applicant lodged a further habeas corpus application and a judicial review application on the grounds, inter alia, that the Secretary of State had acted pre-emptorily by acting too quickly without reading the applicant's personnal representations or hearing those on his behalf to be made by the delegation of Members of Parliament, particularly in view of the pending application before the Commission.   The habeas corpus application apparently concerned the continued refusal of the Hong Kong authorities to make full disclosure of documents upon which some of the allegations against the applicant are made.   It also involved the alleged unlawfulness of the Secretary of State's decision.           On 30 July 1992 the application for judicial review was refused by the Divisional Court on the merits and the application for habeas corpus was dismissed.   The Court held that the Secretary of State was not shown in the circumstances to have prejudiced the applicant by the course which he had adopted, since:         1.    he had stated that his decision would not have been            different had he read the applicant's representations;         2.    the substance of those personal representations should have            been clear to the Secretary of State;         3.    the Secretary of State's decision was not one which on the            facts no sensible Secretary of State could have reached;            and         4.    as a matter of English law, the Secretary of State was not            required to await the proceedings pending in Strasbourg and            could form his view about the adequacy of the specialty            assurance.         On 11 August 1992 the applicant applied for leave to appeal against these decisions, which proceedings are pending.   The applicant's extradition is in the meantime suspended.     COMPLAINTS         The applicant complains as follows:   (a)    that his extradition is unlawful, contrary to the standard of       Article 5 para. 1 (f), because of the absence of sufficient       specialty protection; his detention with a view to extradition       is accordingly also unlawful;   (b)    that his extradition is unlawful because of the denial of an       effective remedy whereby the lawfulness of detention and       extradition can be tested following the order of the Secretary       of State to surrender him, contrary to Article 5 paras. 1 and 4       of the Convention; and   (c)    that such a remedy is denied on the facts of the applicant's       case, but is available in the case of an extradition to which       section 12 of the Extradition Act 1989 applies and this       difference in treatment is without justification or legitimate       aim, is disproportionate and constitutes discrimination contrary       to Article 14 read in conjunction with Article 5 of the       Convention.         In respect of these complaints the applicant claims to be denied an effective remedy, contrary to Article 13 of the Convention.         The applicant submits that the requirement of specialty is so fundamental a tenet of the rules relating to extradition in the laws of the Member States of the Council of Europe as to constitute a requirement implicit in the term "lawful" where it is used in Article 5 para. 1 (f) of the Convention.   He contends, in the context of   Article 5 paras. 1 and 4, that his extradition is unlawful because of an alleged denial of an effective remedy whereby the lawfulness of his detention and extradition can be tested following the order of the Secretary of State to surrender him to Hong Kong.   In this connection the Secretary of State has declined to give any undertaking to allow the applicant a few days in which to take advice as to the opportunity to challenge his eventual order surrendering the applicant to the Hong Kong authorities.   There would be nothing, therefore, to prevent the applicant's immediate removal to Hong Kong, this being a matter left to the discretion of the Secretary of State.   The possibility of immediate removal applies to persons to be extradited to a United Kingdom colony.   In contrast, persons being extradited to foreign countries apparently receive 15 days' advance notice of removal.   The applicant contends that this notification difference constitutes discrimination in violation of Article 14 of the Convention read in conjunction with Article 5.   Finally the applicant contends that he has no effective remedies at his disposal under English law in relation to his Convention complaints, contrary to Article 13 of the Convention, to the extent that the provisions of Article 5 para. 4 and the terms of Article 5, taken as a whole, do not constitute a lex specialis in respect of these complaints.     THE LAW   1.     The applicant first complains that his proposed extradition to Hong Kong is in breach of Article 5 para. 1 (Art. 5-1) of the Convention, in particular Article 5 para. 1 (f) (Art. 5-1-f), because of an alleged absence of sufficient specialty protection.         The relevant part of Article 5 para. 1 (Art. 5-1) of the Convention provides 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            against whom action is being taken with a view to            deportation or extradition."         The Commission recalls the following findings it made in the applicant's second application, No. 15933/89:         "The Commission ... notes the validity of the emergency,       provisional warrant issued by the London Magistrate on 2 December       1985 and the validity of the Hong Kong warrant of 20 January       1986, which allowed the Secretary of State to authorise the       Magistrate to proceed with the extradition committal proceedings       against the applicant.   It, therefore, finds no evidence to       suggest that the applicant's detention in the United Kingdom       since 6 December 1985 has not been in accordance with a procedure       prescribed by law within the meaning of Article 5 para. 1       (Art. 5-1) second sentence, or generally lawful within the       meaning of Article 5 para. 1 (f) (Art. 5-1-f) of the Convention,       the applicant being a person against whom action has and       continues to be taken with a view to his extradition."         In the present case the Commission notes that the applicant seeks to revive his earlier application with new arguments concerning a question of specialty protection, following an undertaking given by the Hong Kong authories on 26 April 1991 to respect the principle of specialty in the event of the applicant being extradited.   The applicant submits that this undertaking will be inadequate when the Chinese take over Hong Kong in 1997.   However the Commission refers to its findings in the applicant's other application, No. 14037/88, firstly that the applicant's claims depend on a number of hypothetical factors such as his conviction, the imposition of a sentence extending beyond 1997 and the re-opening of proceedings against the applicant by the Chinese authorities.   Secondly the United Kingdom Government could not be held directly responsible under the Convention for future hypothetical acts of the Government of the People's Republic of China. The Commission therefore endorses the principle affirmed by the Divisional Court in the present case that the United Kingdom and Hong Kong Governments could not be expected to provide any more specialty protection than has already been offered.         The Commission concludes that the applicant's submissions in the present case do not cast doubt on its earlier finding that the applicant's detention in the United Kingdom complies with Article 5 para. 1 (Art. 5-1) of the Convention, the applicant being a person against whom action has and continues to be taken with a view to his extradition.   It follows that this part of the case is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant next complains of discrimination contrary to Article 14 (Art. 14) of the Convention, read in conjunction with Article 5 (Art. 5) , because persons extradited to United Kingdom colonies have no right to receive prior warning of their extradition date, whereas persons extradited to other foreign countries receive 15 days' notice of their removal from the United Kingdom.   However, the Commission doubts whether this notification matter relates to a question of lawful detention under Article 5 para. 1 (f) (Art. 5-1-f) of the Convention.   The Secretary of State's decision would not be to continue the applicant's detention in the United Kingdom, but to end it by the execution of the extradition order, handing the applicant over to the Hong Kong authorities.   Nevertheless, even assuming that this matter touches on issues relevant to Article 5 (Art. 5), the Commission finds that the notification difference does not amount to discrimination within the meaning of Article 14 (Art. 14) of the Convention as it has an obvious reasonable and objective basis (cf. mutatis mutandis No. 9088/80, Dec. 6.3.82, D.R. 28 p. 160, at p. 163- 164, point 2).   There is a special link between the United Kingdom and its colonies which enables it to exercise an influence on events in those places.   It could not exercise such an influence over other foreign countries.   It is thereby possible to rectify any failure to respect general extradition rules by the receiving colony.   The need for advance warning of the execution of an extradition order is, therefore, not pressing.   Accordingly the Commission considers that the United Kingdom may reasonably withhold notice of the extradition order from a fugitive offender being extradited to one of its colonies like Hong Kong, with whom it has such close links.         The Commission concludes that the present application does not disclose any evidence of discrimination contrary to Article 14 of the Convention, read in conjunction with Article 5 (Art. 14+5).   It follows that this aspect of the case is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     Finally the applicant complains that he has no effective domestic remedies at his disposal to test his Convention complaints.   He invokes both Article 5 para. 4 (Art. 5-4) of the Convention and Article 13 (Art. 13).         Article 5 para. 4 (Art. 5-4) 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."         This provision is the lex specialis in relation to the applicant's complaints under Article 5 (Art. 5) of the Convention.   As regards the applicant's complaint that his detention pending extradition is unlawful and not in accordance with Article 5 para. 1 (f) (Art. 5-1-f) of the Convention, the Commission notes that the applicant has been afforded many opportunities to exert a remedy compatible with Article 5 para. 4 (Art. 5-4) of the Convention, namely the numerous habeas corpus applications which he has made and still makes, as well as the possibility to apply for judicial review.   The applicant also had every opportunity to contest the extradition, as such, before the Bow Street Magistrates Court in 1987.         In these circumstances the Commission concludes that the present case does not disclose any appearance of a violation of Article 5 para. 4 (Art. 5-4) of the Convention.         The provisions of Article 13 (Art. 13) of the Convention, also invoked by the applicant, are as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."         The only element of the applicant's case which might not fall within the ambit of Article 5 para. 4 (Art. 5-4) of the Convention above concerns his complaint under Article 14 of the Convention read in conjunction with Article 5 (Art. 14+5).   However, for the same reasons outlined above in rejecting the applicant's Article 14 (Art. 14) complaint as being manifestly ill-founded, the Commission finds that the applicant has no arguable claim under that provision which might necessitate a remedy pursuant to Article 13 (Art. 13) of the Convention (cf. notion of "arguable" claim in Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A No. 131, pp. 23-24, paras. 52-58).         It follows that the applicant's complaints about a lack of remedies are, like the rest of the application, 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 First Chamber         President of the First Chamber         (M. de SALVIA)                          (J.A. FROWEIN)