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)
Full & Egal Universal Law Academy