CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 décembre 1997

.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. 27279/95                       by Ewan Quayle LAUNDER                       against the United Kingdom           The European Commission of Human Rights sitting in private on 8 December 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  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            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV           Mr M. de SALVIA, 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 5 April 1995 by Ewan Quayle Launder against the United Kingdom and registered on 10 May 1995 under file No. 27279/95;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       5 August 1997 and the observations in reply submitted by the       applicant on 20 October 1997 and the additional material       submitted by the parties in November and December 1997;           Having deliberated;         Decides as follows:   THE FACTS         The applicant is a British national, born in 1935.   Before the Commission he is represented by Titmuss Sainer Dechert, solicitors practising in London.         The applicant is married and has three children, aged 34, 32 and 28, and five grandchildren.   The applicant and his family currently reside in the United Kingdom.         The facts of the case as submitted by the parties may be summarised as follows.   A.     Particular circumstances of the case   The charges against the applicant and the events leading to his arrest         The applicant and, apparently, his family, lived in Hong Kong between 1973 and 1983.         The applicant has been charged in Hong Kong on fourteen counts of accepting bribes.   The charges are that between October 1980 and June 1982 as managing director of the merchant bank Wardley Limited in Hong Kong he received bribes in an amount totalling approximately £ 4.5 million from T. and C., the persons who controlled the Carrian and the Eda Group of companies.         The Carrian and Eda Groups collapsed in 1982 and 1983.   In March 1983 inspectors were appointed to investigate their affairs.   T. was arrested in October 1983.   In 1983 the applicant was interviewed in Hong Kong by inspectors who handled the inquiry.   He was again contacted by the Hong Kong authorities in 1985, by mail, through the address of his newly incorporated company in the United Kingdom.   The applicant, who at that time was in the United States, replied and provided his address there.   At that time he was not suspected of wrongdoing.   In December 1986 a report into the investigation of the Eda Group was published in Hong Kong.         In July 1987 the United Kingdom authorities received a letter from a person claiming to be an employee of Wardley alleging corruption by the applicant.   In September 1987 the letter was passed to the Hong Kong authorities.   In October 1987 they began inquiries into alleged corruption by the applicant.   In 1988 the inquiries disclosed that payments had been made by T. and C. to an account of a company incorporated in Panama and controlled by the applicant.   An amount was traced to a personal account of the applicant.   In 1989 the Attorney General of Hong Kong gave consent to prosecute the applicant and a warrant for his arrest was issued.         Throughout 1988 the applicant lived in London and worked for his company incorporated there.   In February 1988 he met in London the liquidators of the Carrian Group to assist them in their work.   The liquidators apparently had no difficulties locating the applicant.         It appears undisputed that by mid-August 1989 the applicant knew of the inquiry relating to him.         In the summer of 1989 the applicant moved to Gibraltar where he incorporated another company.   Thereafter and throughout 1990 he lived with his wife in Malaga, Spain, where he had purchased a house.   His company's address was listed in the telephone directory of Gibraltar.       On 21 May 1990, upon the request of the Hong Kong authorities, a provisional warrant for the applicant's arrest was issued at Bow Street Magistrates Court in London.   In September 1990 an international arrest warrant was issued by Interpol.         After October 1990 and until his arrest the applicant worked in Berlin where he incorporated another company.   In March 1991 he applied for and was issued with a new passport at the British Embassy in Berlin.   On the application form for a passport the applicant indicated his addresses in the United Kingdom and in Berlin.         In April 1991 the applicant's wife was contacted at her home in the United Kingdom and was informed that the police wanted to speak to her husband.   The applicant submits that he did not know of the formal charges against him before June 1991, when he was informed thereof by his Hong Kong solicitors.         It appears that the applicant did not visit the United Kingdom between December 1989 and July 1992, when he came on a short visit. Subsequently he made visits in September, October and December 1992 and in August 1993.         In April 1993 two representatives of the Hong Kong authorities were at Berlin airport and saw the applicant.   According to them they attempted to follow and then lost the applicant who allegedly used "professional anti-surveillance techniques".   The applicant denies this.         On 10 September 1993, when arriving in London on a flight from Germany, the applicant was arrested.   On 30 September 1993 he was released on bail.   Legal proceedings in the United Kingdom         On 12 January 1994 the Secretary of State issued a specialty certificate under Section 6 paras. 4 and 7 of the Extradition Act 1989. This certificate provided that the Governor of Hong Kong had undertaken that in the event of the applicant's return to Hong Kong he would not be tried in respect of other crimes unrelated to those for which he would be returned.         On 7 April 1994 a Magistrates Court committed the applicant to await the decision of the Secretary of State concerning his return to Hong Kong, under Section 9 of the Extradition Act (1989).         The applicant then sought habeas corpus, which was refused on 14 December 1994 by the Divisional Court.   The issue for the Divisional Court was whether by reason of the passage of time since the alleged offences it would, having regard to all the circumstances, be unjust or oppressive to return the applicant to Hong Kong (Section 11(3) of the Extradition Act).         The principles to be applied by the Divisional Court were summarised by Glidewell LJ in the following manner:         "(i) The relevant passage of time runs from the date of alleged            offences to the date of this hearing.   See Kakis v            Government of Cyprus [1978] 1 WLR 779, a decision of the            House of Lords, particularly the speech of Lord Diplock at            page 782.         (ii) "Unjust" means unjust to the accused in the conduct of the            trial.   In other words, the question on that issue is,            would it be possible for the accused to have a fair trial            despite the lapse of time?   "Oppressive" relates to            hardship to the accused resulting from changes in his            circumstances which have occurred during the relevant            period.   See again Kakis, the speech of Lord Diplock, pages            782-3.         (iii) Thirdly, the task of this Court sitting as a court of first            instance, is to consider the facts placed before it and form            an opinion as to the inferences to be drawn from the facts            it finds as primary facts.   See R v Governor of Pentonville            Prison, ex parte Narang [1978] AC 247, per Viscount Dilhorne            at 272H.   The decision is one of fact and not law, and does            not involve an exercise of discretion.              'Moreover, it is to be noted that if it appears to the            Court that it would, because of the passage of time, be            unjust or oppressive to return him, this Court shall order            the applicant's discharge.'         (iv) The Applicant cannot rely on delay for which he personally            was responsible.   See Kakis at page 783. ..."         The fifth principle applied, in the applicant's favour despite some doubt on the status of the authorities, was that:              "... to the extent that the Hong Kong Government is proved            to have been responsible for delay, that is a matter            properly to be taken into account in deciding the issues of            injustice and oppression."         Turning to the facts of the case before it, the Divisional Court noted that the time which had elapsed since the offences were alleged to have been committed was lengthy and examined the reasons for that length.   The Divisional Court divided the length of time, for this purpose, into four periods: from the commission of the alleged offences until September 1987; from September 1987 to November 1989; from November 1989 to the arrest in September 1993; and from September 1993 to the date of its judgment.         As regards the first period the Divisional Court found that until the receipt of a letter from an informer nobody suspected Mr Launder of corruption and that, therefore, the Hong Kong authorities should be absolved from any responsibility for that delay, which resulted "in part" from Mr Launder's own activities.   The Court noted that there existed evidence that steps had been taken to conceal the fact that the trail led to Mr Launder.   In particular, some large payments were made in cash, and where cheques were used, they were not made out to him. Also, all the money had left Hong Kong by the end of 1983.         As regards the second period the Divisional Court found that no criticism of the Hong Kong authorities could be made in respect of the first year of this two year period.   The Court concluded that "if the Hong Kong Government have any responsibility, it is for not more than about one year of delay in that period".         As regards the third period the applicant's submissions to the Divisional Court had been, in essence, that he had lived and travelled openly in that period and there should accordingly have been no difficulty in tracing and arresting him.   The Divisional Court noted inter alia:   (i) that it was of no avail to the authorities to know where the applicant had last been.   They needed to know where he would be at a particular date and the applicant appeared to have taken steps to ensure that, at the least, that was difficult;   (ii) that the applicant "was unwilling to be interviewed and ... took the view as he makes clear that it was not for him to surrender himself, it was for the authorities to arrest him if they could";   (iii) that the difficulties were compounded by the fact that, as the applicant knew, certain countries (such as Germany) would not issue an extradition warrant after a fixed period of time.         Curtis J, who agreed with the findings of fact and the conclusions of Glidewell LJ, further noted:              "... I would find that the only proper inference from the            applicant's conduct at Berlin Airport in April 1993 and at            Heathrow Airport in September 1993 when he was arrested, is            that he was intentionally covering his tracks as well as            avoiding arrest.   It was only a timely tip-off which            enabled the authorities to effect his arrest at Heathrow.            In my view this conclusion throws abundant light on the            question of who is responsible for the delay in period            number 3, that is to say, between November 1989 and            September 1993."         In all the circumstances, and having considered all the evidence, the Divisional Court concluded as follows:              "... during this period up to his arrest, Mr Launder            himself was responsible for the delay.   In so far as he            could do so consistently with conducting the affairs of the            various Quail companies, and no doubt continuing to live            what he regarded as a reasonably civilised life, he took            steps to avoid coming to the attention of the authorities,            and thus to avoid arrest."         Finally, the Divisional Court noted that since September 1993 the time had been taken up with "various legal procedures for which neither party is responsible".         The Divisional Court then considered whether injustice or oppression to the applicant would result from his return to face trial in Hong Kong.   The Court found that there was no prejudice from any lack of documents.   As to any prejudice which might be suffered from the lack of witnesses, the Court observed that, given the absence of even a general summary of the nature of the defence which would be advanced on the applicant's behalf, it was "extremely difficult to conclude in his favour that he will be unable to receive a fair trial". The Court further took into account the general anxiety of the proceedings hanging over the applicant for a long period of time; but noted that "the responsibility for it is that of [the applicant] himself".         Leave to appeal to the House of Lords against the Divisional Court's judgment of 14 December 1994 was refused on 9 March 1995.         On 5 April 1995 the applicant made detailed submissions to the Secretary of State, inter alia, as regards the alleged risks which he would face after 1 July 1997, when Hong Kong would become a "special administrative region" ("the HKSAR") within the People's Republic of China ("P.R.C.").         On 31 July 1995 the Secretary of State ordered his return to Hong Kong.   His decision was reasoned.   He found, inter alia, that under the Joint Declaration of 1984 Hong Kong's legal system would continue to operate independently from the P.R.C. for 50 years after 1 July 1997; that specialty protection would be preserved; and that under Hong Kong law the charges against the applicant did not carry the death penalty.         On 21 December 1995 the Secretary of State refused the applicant's request to reconsider this decision (the applicant had claimed that new developments had occurred by November 1995).         The applicant applied for judicial review of the decisions of the Secretary of State of 31 July and 21 December 1995.   On 6 August 1996 the Divisional Court quashed the decision of the Secretary of State to order the applicant's return and remitted the matter back to the Secretary of State to take a fresh decision.         The Court found inter alia that the Secretary of State had erred in the exercise of his discretion under Section 12 of the Extradition Act (1989) in that he considered himself bound by a collective Cabinet decision that the P.R.C. would comply with its treaty obligations as regards the legal system of Hong Kong after 1 July 1997.         The Secretary of State appealed to the House of Lords. On 21 May 1997 the House of Lords allowed the appeal and dismissed the applicant's application for judicial review.         The substance of the House of Lords' judgment (3 All ER 961 [1997]) may be summarised as follows:         (i) The applicant challenged the decision of the Secretary of State to extradite him to Hong Kong on the grounds, inter alia, that the decision was irrational and that the extradition would be in violation of the Convention since, if returned to Hong Kong, his rights to life and liberty, to a fair trial and not to be subjected to inhuman and degrading treatment would be put at risk.         (ii) In deciding to extradite the applicant, the Secretary of State had applied the right test as a matter of domestic law, namely whether the applicant would be exposed to the risk of injustice or oppression if he were to be returned to Hong Kong to face trial there after 1 July 1997.         (iii) It was clear that in applying this test great weight had been given by the Secretary of State to the provisions of the Joint Declaration and the Basic Law (see below Relevant law and practice) which the House of Lords described as "impressive in their attention to detail and in their recognition of fundamental principles".   It was indicated in evidence that the Secretary of State "had proceeded on the basis that the P.R.C. will honour the obligations and commitments under the established instruments [the Joint Declaration and the Basic Law]."         (iv) No attempt had been made to answer in any other way the many detailed representations on the applicant's behalf that, despite what was said in these instruments, the legal, penal and judicial system in Hong Kong after 1 July 1997 would not protect the right to a fair trial and, in case of conviction, to appropriate punishment.   The material filed by the applicant contained "numerous examples of acts done and permitted to be done by the P.R.C. and its officials to illustrate the argument that in the P.R.C. the law is seen as the instrument of the Party and of the Executive, and that any legal procedure, however fair and however comprehensive, cannot be expected to guarantee an independent system of justice after the handover".         (v) The question whether it was unjust or oppressive to order the applicant's return to Hong Kong might in the end depend upon whether the P.R.C. could be believed to implement its treaty obligations to respect his fundamental human rights, allow him a fair trial and leave it to the courts, if he were convicted, to determine the appropriate punishment.   The decision on this question rested with the Secretary of State and not with the United Kingdom courts, whose function was one of review only:        "The visible part is the framework of law which I have discussed.   That part can be explained and analysed.   The invisible part is about the hearts and minds of those who will be responsible for the administration of justice in Hong Kong after the handover.   This is not capable of analysis.   It depends, in the end,   upon the exercise of judgment of a kind which lies beyond the expertise of the court."         (vi) There was room for two different views.   On one view, taken by the applicant and supported by a substantial body of evidence from expert witnesses, the P.R.C. had already demonstrated by its conduct in recent years that the P.R.C. was incapable of giving effect to the rule of law on which the Basic Law would depend.   There was on this view a risk, especially in a politically sensitive case, that any trial would be unfair and that on conviction the executive would insist on inhuman and excessive punishment.   The other view, taken by the Secretary of State, was that the P.R.C. had good reason to make every effort in Hong Kong to preserve the existing criminal justice system, in recognition that it would not be appropriate to practise the socialist system and policies there.   The P.R.C. had an obvious interest in making a success of the new arrangements.   A breakdown of the rule of law generally, or a departure from it in some cases such as this one, would be bound to have a serious effect on confidence throughout the business community on which it depended for that success.         (vii) The care taken by the Secretary of State during the long period of preparation for the takeover provided a clear basis for holding that the decision of the Secretary of State to reject the applicant's arguments was not irrational.         (viii) The applicant had rightly identified a gap in the specialty arrangements relating to the question whether the applicant would be protected from transfer to the P.R.C. if extradited after 1 July 1997 as Section 17(2) of Hong Kong Ordinance No. 23 of 26 March 1997 (the Fugitive Offenders Ordinance) was silent about the re- surrender of a fugitive to the P.R.C. The House of Lords noted the importance of this issue as it was dealing with "concerns which have been expressed about human rights and the risks to the [applicant's] life and liberty".   The House of Lords however further noted the following: the P.R.C. had agreed that Hong Kong might negotiate and conclude, under the authorization of the P.R.C., its own   extradition arrangements containing specialty protection; such agreements had been concluded with other States;   based on Section 3(1) of Ordinance No. 23 there would be the necessary protection after the handover once such an agreement was concluded with the United Kingdom; there existed a draft of an agreement with the United Kingdom which would provide protection; furthermore, there existed the provisions of the Basic Law relating to human rights and fundamental freedoms and to the judiciary; it was the stated policy of the Hong Kong Government and of the incoming Government of the HKSAR that it did not and would not surrender persons to places outside its jurisdiction either to face trial or to serve sentences unless it was pursuant to a law and subject to safeguards:        "It is reasonable to conclude that, in accordance with the fundamental policy which has been enshrined in the Basic Law, the prohibitions which are needed to ensure that the [applicant] is not surrendered to the P.R.C. will be in place after 1 July 1997. As ... already said, there is room for two views as to whether China can be relied upon to respect this policy. But it cannot be said to be irrational to prefer the view that sufficient commitment to that policy has already been demonstrated by the P.R.C. and that sufficient incentives exist to ensure the continuation of that commitment after the handover."         As a result of the judgment of the House of Lords, the decision of the Secretary of State to return the applicant to Hong Kong became effective.   The applicant surrendered to custody on 21 May 1997 and was detained with a view to his return to Hong Kong.   In June 1997 he was released on bail.         On 1 July 1997 the P.R.C. resumed sovereignty over Hong Kong.   B.     Relevant law and practice         In accordance with the Joint Declaration of 1984 (a binding treaty between the United Kingdom and the People's Republic of China on the status of Hong Kong) on 1 July 1997 Hong Kong became a "special administrative region" ("HKSAR") within the P.R.C.         Under the Joint Declaration and the Hong Kong Basic Law (adopted in 1990 and promulgated by the President of the P.R.C.) Hong Kong preserves its independent legal and judicial system for 50 years after 1997.         Under Section 8 of the Basic Law "the laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene [the Basic Law] and subject to any amendment by the legislature of the Hong Kong special administrative region."         The Joint Declaration provides that the legislature should be constituted by elections.   Following a dispute between the United Kingdom and the P.R.C. as to whether the Legislative Council, as established after a 1995 electoral reform, should have continued its functions after 1 July 1997, a Provisional Legislature was appointed without elections.   Elections for a legislature are announced to be held in May 1998.   On 1 July 1997 the Provisional Legislature adopted the Hong Kong Reunification Ordinance.   The Ordinance confirmed the maintenance and continuity of previous laws, of the public service and of the judicial system.   The Ordinance also introduced some amendments to the Bill of Rights Ordinance establishing the requirement of previous approval by the police for demonstrations.         Under Section 160 of the supplementary provisions to the Basic Law the exception to the principle of continuity also includes those laws which upon their review by the Standing Committee at the Chinese National People's Congress are found to be in contravention of the Basic Law.   On 23 February 1997 the Standing Committee adopted its decision under Section 160 of the Basic Law.   Certain laws dealing mainly with issues of foreign affairs and nationality were declared contrary to the Basic Law.   No provision relating to the criminal justice system or to human rights has been declared contrary to the Basic Law.         Article 19 of the Basic Law, insofar as relevant, provides as follows:        "The [HKSAR] shall be vested with independent judicial power, including that of final adjudication.        The courts of the [HKSAR] shall have jurisdiction over all cases in the Region ...        The courts of the [HKSAR] shall have no jurisdiction over acts of state such as defence and foreign affairs.   The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases.   This certificate shall be binding on the courts.   Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People's Government."         Under the Joint Declaration and the Basic Law the judicial system previously practised in Hong Kong is maintained, except for those changes consequent upon the establishment of a Court of Final Appeal. Members of the judiciary enjoy immunity from legal action in the performance of their judicial functions.   The Court of Final Appeal comprises permanent and non-permanent judges to be drawn from a panel of experienced judges.   Four permanent and fifteen non-permanent judges have already been appointed.   A majority of them, including Chief Justice Litton, are persons who received part of their education and practised for certain periods of time in the United Kingdom.   Four of the non-permanent judges are from overseas (two from Australia and two from New Zealand).         The Joint Declaration and the Basic Law also contain provisions guaranteeing human rights, such as the right to a fair trial (Article 87 of the Basic Law), the presumption of innocence (ibid.), and the prohibition of arbitrary or unlawful arrest, detention or imprisonment (Article 28).         The Joint Declaration and the Basic Law provide for the applicability of the International Covenant on Civil and Political Rights in Hong Kong.   According to the Chairman of the UN Human Rights Committee, in a statement issued on 9 November 1995, the applicability of the Covenant could be derived both from the Committee's jurisprudence in cases of dismemberment of a State party and from the explicit text of the Joint Declaration which is binding upon the P.R.C..         It appears that while accepting the applicability of the Covenant for Hong Kong (the P.R.C. itself is not a party thereto) the Chinese Government have released statements to the effect that they would not be bound by the reporting obligation under Article 40 of the Covenant.         On 5 November 1997 there was signed a Surrender of Fugitive Offenders Agreement between the Government of the United Kingdom and the Government of the HKSAR.   The Government of the HKSAR had been duly authorised to conclude the agreement by the Government of the P.R.C. Article 18 of the agreement provides as follows:   "(1) Where a fugitive offender has been surrendered to the requesting Party, that Party shall not surrender him to any other jurisdiction for an offence committed before his surrender unless:         (a) the requested Party consents; or         (b) he has first had an opportunity to leave the jurisdiction of the requesting Party and has not done so within forty days of having been free to do so or has returned voluntarily to that jurisdiction having left it.   (2)    The party whose consent is requested may require the production of the documents submitted by the other jurisdiction in support of its request for surrender."         Article 20 of the agreement stipulates that it enters into force thirty days following the exchange of notifications confirming the completion of the procedures necessary to enable the agreement to enter into force.     COMPLAINTS   1.     The applicant submits that the United Kingdom would violate his rights under the Convention if he is extradited.   He invokes Articles 1, 2, 3, 5, 6, 7, 8, 13 and 14 of the Convention.         The applicant makes the following general submissions concerning the situation in the HKSAR:         He submits that given the political system in the P.R.C. and its abominable human rights record, there is a strong likelihood that the P.R.C. will ignore previous undertakings, such as the guarantees for the independence of the judicial system and for human rights in the HKSAR.         The applicant also makes detailed submissions on the principles and concepts of Chinese law arguing that, as a result of the fundamental differences between these and the European concepts of law and its interpretation, the Basic Law, the Joint Declaration and all legal provisions which remained in force after 1 July 1997 could be interpreted in a manner which would result in denial of basic human rights.   The applicant submits experts' opinions and articles from the press concerning the expected changes in the HKSAR after 1997.         The applicant submits that the courts of the HKSAR would not have jurisdiction over matters relating to "acts of State" and that this as interpreted in the P.R.C. may include "implementation of the policies of the Government of the day".   As a result, given the special policy concern which corruption constitutes in the P.R.C., the applicant can allegedly be dealt with under the "act of State" provision and his trial used as an example of capitalist corruption.         The applicant submits also that there is no guarantee that he would not be transferred to other parts of the P.R.C.   This is so because there is a gap in the existing legal arrangements as regards persons extradited to the HKSAR in that there is no clear prohibition against surrendering such persons to other parts of the P.R.C.   This gap was acknowledged by the House of Lords in the applicant's case.         He also considers that there is a grave risk that the undertakings under the specialty certificate issued in 1994 by Hong Kong's Governor would not be honoured after 1 July 1997.         Based on these submissions the applicant makes the following specific complaints:   (a)    Under Article 2 of the Convention the applicant submits that there is no guarantee that the death penalty for offences such as those for which he is charged would not be restored in the HKSAR.   Also, he risks an arbitrarily imposed death penalty if transferred to other parts of the P.R.C.   The applicant refers, inter alia, to the case of a Mr Wang Jianye who was extradited from Thailand to the P.R.C. on corruption charges after the receipt of assurances from the Chinese authorities that he would be punished by not more than 15 years imprisonment.   However, it is submitted that Mr Jianye was executed in a football stadium after having been paraded through town on an open top truck, the execution having been broadcast on television.   (b)    Under Article 3 of the Convention the applicant contends that he faces a real risk of a punishment disproportionate to the severity of the alleged crime and that in the P.R.C. there exist no guarantees against ill-treatment.   The applicant refers to the fact that no Member State of the Council of Europe has any form of legal co-operation agreement with the P.R.C.   (c) Under Article 5 of the Convention the applicant submits that his extradition would be in breach of his right to security of person as he would face a threat of unjustified and arbitrary detention.   In the applicant's view, Article 5 of the Convention obliges States' courts to examine whether a possible detention as a result of an extradition would not be arbitrary.   The United Kingdom courts were not competent to and allegedly did not examine this issue.   (d)    Under Article 6 of the Convention the applicant complains that there would be a flagrant denial of his right to a fair trial in case of his extradition.   He contends that there is a strong likelihood that pressure would be exercised on the courts in the HKSAR, and that the case would   be regarded as an example in order to pillory the "western" and "capitalist" administration of the former colony of Hong Kong.         The applicant also submits that his trial after the extradition would not be fair due to the passage of time since the alleged offences.   In particular, there would be difficulties in ensuring the attendance of crucial witnesses, some of whom have long since left Hong Kong.   Also, a trial and punishment in respect of events dating between 1980 and 1982 would also be a breach of the right to security of person under Article 5 of the Convention and contrary to the principle of legality enshrined in the Convention.   (e)    The applicant also submits that in the event of his extradition Article 7 of the Convention would be violated as in the P.R.C. the principle "nullum crimen nulla poena" does not exist.   (f) Under Article 8 of the Convention the applicant submits that an extradition effected 19 years after the alleged offences could not be regarded as lawful, hence the interference with his family life would not be lawful.   Also, the measure is allegedly disproportionate.   The applicant's family would be thousands of miles away from him.   (g) The applicant also invokes Article 14 of the Convention.   2.   The applicant alleges violations of the Convention also in respect of the proceedings in the United Kingdom related to his extradition. Invoking Article 13 in conjunction with Articles 3, 5 and 6 of the Convention the applicant submits that he does not have an effective remedy because the House of Lords limited its review of the Secretary of State's decision to extradite him only to the question of the alleged irrationality.   The applicant also invokes Article 14 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 5 April 1995 and registered on 10 May 1995.         On 30 May 1997 the Commission decided to communicate the application to the respondent Government.   The Commission also decided, in accordance with Rule 36 of its Rules of Procedure, to indicate to the Government of the United Kingdom that it was desirable in the interests of the Parties and the proper conduct of the proceedings before the Commission not to extradite the applicant to Hong Kong until the end of the Commission's session in September 1997.   The effect of this indication was thereafter prolonged.         The Government's written observations were submitted on 5 August 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 20 October 1997.         The Government submitted further information by letter of 20 November 1997.   The applicant replied on 24 and 28 November and on 5 December 1997.     THE LAW   1.     The applicant complains that in the event of his extradition to the Hong Kong Special Administrative Region ("HKSAR") of the People's Republic of China ("P.R.C.") he faces a real risk of loss of life contrary to Article 2 (Art. 2) of the Convention or of ill-treatment in violation of Article 3 (Art. 3) of the Convention.         Article 2 (Art. 2) of the Convention, insofar as relevant, provides as follows:         "1.   Everyone's right to life shall be protected by law.   No one       shall be deprived of his life intentionally save in the execution       of a sentence of a court following his conviction of a crime for       which this penalty is provided by law.         ..."         Article 3 (Art. 3) of the Convention provides as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."   a)     The Government maintain that the complaints must be examined in the HKSAR context as the applicant is to be extradited there and not to other parts of the P.R.C.   The Government submit that the HKSAR has its independent legal system which is preserved and that therefore the material presented by the applicant about the P.R.C. and its human rights record is of little assistance.   The Government maintain that the applicant has failed to show that in the HKSAR he risks the death penalty, inhuman treatment or punishment, or denial of a fair trial.         Referring to the judgment of the House of Lords in the applicant's case the Government deny that there is any risk of his transfer to the P.R.C.    The Government submit that in any event any possible lacuna which might have existed at the time of the House of Lords' judgment has been filled by the Agreement between the United Kingdom Government and the Government of the HKSAR of 5 November 1997 the effect of which is, inter alia, to protect the applicant from further surrender to other parts of the P.R.C.         The Government contend that the applicant's submissions that the P.R.C. cannot be trusted to abide by its treaty obligations to preserve the independent system in the HKSAR, if accepted, would mean that no civilised State could properly conclude extradition arrangements with the HKSAR.   However, extradition agreements are in place between the HKSAR and respectively the Netherlands, Canada, Australia and other States.   Furthermore France, Germany, Italy, Switzerland and Belgium are currently negotiating such agreements.   The Government submit that therefore the United Kingdom are not alone in their judgment that the criminal justice system in the HKSAR will continue to ensure fairness of proceedings.   Moreover, it also follows that the applicant's case is not unique and therefore exceptional, as he is trying to present it.         The Government further maintain that the decision of the Secretary of State involved inevitably a large element of judgment about the likely future developments in the HKSAR and "about the hearts and minds of those who will be responsible for the administration of Hong Kong".   By its very nature that judgment was particularly within the expertise of the executive and difficult for a court. Nevertheless, the decision of the Secretary of State has been subject to careful review and to "the most anxious scrutiny" by the domestic courts, including as regards events which post-dated the decisions in question.   Although the judicial review proceedings did not amount to an appeal on the facts, the applicant was able fully to develop before the House of Lords the same submissions which he is now making before the Commission.         The Government submit that the P.R.C. has good reason to ensure that the legal system in the HKSAR continues as it was before 1 July 1997 as the success of Hong Kong would be otherwise undermined. Furthermore, the events since the handover provide, in the Government's view, powerful reinforcement of that indication.   In particular, the judicial system has been preserved.         The applicant replies that he has established the existence of a very serious risk of a flagrant denial of his basic human rights.         The applicant contends that he is not protected from transfer between the HKSAR and other parts of the P.R.C. particularly in view of the nature of the charges against him and of his profile.   The applicant submits that the House of Lords merely reviewed the decisions of the Secretar