AS TO THE ADMISSIBILITY OF
Application No. 24110/94
by F.T.
against the United Kingdom
The European Commission of Human Rights sitting in private on
18 October 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 February 1994
by F.T. against the United Kingdom and registered on 9 May 1994 under
file No. 24110/94;
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 facts as submitted by the applicant may be summarised as
follows.
The applicant is a British citizen, born in November 1909 and is
resident in the United Kingdom. He is represented before the Commission
by Messrs. Colin Nott and Piers Gardner, solicitors and Mr. Colin
Nicholls, a barrister practising in London.
A. Particular circumstances of the case
On 9 June 1993 the applicant was arrested on foot of a
provisional warrant issued in the United Kingdom following a request
for his extradition made by the Government of the United States. The
warrant was issued pursuant to the Extradition Act 1989 (the 1989 Act")
on the basis of information laid before Bow Street Magistrates' Court
("the Magistrates' Court"). The applicant appeared the same day before
the Magistrates' Court and was bailed pending a full hearing of the
extradition request. Since then he has been living at his home with his
wife.
Both a supporting affidavit sworn on behalf of the Government of
the United States and a charge sheet completed at the Magistrates'
Court referred to the applicant being 5 years younger than the age on
his birth certificate. The reason for this error was that, many years
previously, the applicant misrepresented his age in order to
participate in the Royal Navy Reserve and subsequently the applicant
retained this younger age for all practical purposes.
By orders of the 11 August and 13 September 1993, made pursuant
to section 5(4) of the 1989 Act, the Secretary of State of the United
Kingdom confirmed that a requisition had been received from the United
States in respect of the applicant. The orders referred to the
applicant obtaining property by deception, procuring the execution of
a valuable security by deception, forgery, using a false instrument and
false accounting which offenses are alleged to have occurred between
1976 and 1986 in the United States. These offenses carry, under the
laws of the United States, a maximum cumulative penalty of 30 years.
From 9 June 1993 to 2 February 1994 various documents were
served, by the Government of the United Kingdom, on the applicant.
Since then the applicant has received, in addition, approximately 3000
pages of documentation. Further documentation has yet to be served on
the applicant and, to date, neither the information supplied to the
Government of the United Kingdom (by the Government of the United
States with the request for extradition) nor that supplied to the
Magistrates' Court (by the Government of the United Kingdom) has been
made available to the applicant.
On 23 October 1993 and on 8 February 1994 the applicant attended
a specialist in occupational health, for the purposes of obtaining a
medical report for use in relation to the extradition proceedings. This
report, dated 14 February 1994, confirmed, inter alia, the following
health problems:
- Heart disease, angina and mild congestive cardiac failure.
- Medically obese (108.5 Kgs).
- Chronic nocturia and chronic mild prostatism.
- Chronic bronchitis requiring antibiotics two or three times a
year. His lung volume and flow rates were substantially below
average.
- High blood pressure.
- Maturity onset diabetes.
- Recent treatment for malignant lesions on his face and chest.
- Some mental deterioration due to age.
The medical report also noted that the applicant is an old man,
likely to die at any time and that congestive cardiac failure is one
of the applicant's most significant health problems. The report went
on to point out that the applicant is likely to suffer either a stroke
or sudden heart attack and that the combination of obesity,
hypertension and ischaemic heart disease make such a stroke or heart
attack a likely terminal or pre-terminal event to the applicant's life.
In addition the medical report stated that the applicant's health
had deteriorated in the months between his first and second visit to
this doctor, which deterioration was partly due to the stress of the
ongoing proceedings. Furthermore, according to the medical report, a
realistic appraisal of the applicant's life expectancy would indicate
that the applicant would not live until the eventual outcome of the
proceedings in the United States. (The applicant submits that his life
expectancy is three years. The medical report did not give an estimate
in terms of a number of years.)
In conclusion, the medical report stated that imprisonment would
pose "a serious danger to his physical ... health and probably to his
life" and may result in mental confusion, collapse and disorientation,
the latter scenario reflecting the doctor's experience with elderly
patients in, inter alia, prisons.
On 2 March 1994 the applicant's legal advisors wrote to the
Secretary of State of the United Kingdom bringing the applicant's age
and ill-health to his attention and inviting him to bring the
extradition proceedings to a conclusion. The Secretary of State
responded on 5 May 1994 indicating that, in light of the particular
circumstances of the case, the matters raised by the applicant's legal
advisors would be put to the United States authorities. Having received
no further response, the applicant's legal advisors wrote to the
Secretary of State and the Crown Prosecution Service ("CPS") on 7
September 1994, requesting both authorities to discontinue the
extradition proceedings. The applicant claims that the CPS has the
power to take such action under section 23 of the Prosecution of
Offences Act 1985, or alternatively, that such power vests in the
Secretary of State. The CPS responded on 12 September 1994 pointing out
that the CPS had no power to discontinue the proceedings in these
circumstances. By letter dated 15 September 1994 the Secretary of State
indicated that he was awaiting a further response from the United
States authorities.
In or about early October 1994 the applicant issued proceedings
for leave to apply for judicial review. The applicant is effectively
seeking a declaration that the Secretary of State and/or the Director
of Public Prosecutions have the power to discontinue the proceedings
against him. The applicant is also seeking an order compelling those
authorities to exercise this power and to decide whether the
proceedings should be discontinued in light of the applicant's age and
ill-health. The judicial review proceedings appear to be ongoing.
The full hearing, on the extradition request from the United
States, has yet to take place.
B. Relevant domestic law
The Extradition Act 1989 ("the 1989 Act") is the legislative
framework through which extradition treaty arrangements between the
United Kingdom and the United States are implemented at a domestic
level.
Section 5(4) of the 1989 Act reads as follows:
"The Secretary of State shall signify to the Bow Street
Magistrates Court that a requisition has been received in respect
of the individual whose extradition is requested."
An order made pursuant to section 5(4) of the 1989 Act
constitutes formal confirmation to the Magistrates' Court of the
extradition request without which order the Magistrates' Court would
lose jurisdiction and the proceedings would come to an end.
Section 23(3) of the Prosecution of Offences Act 1985 states that
where, at any time during the preliminary stages of proceedings, the
Director of Public Prosecutions gives notice to the clerk of the court
that he does not want the proceedings to continue, they shall be
discontinued.
COMPLAINTS
The applicant complains under:
1. Article 3 of the Convention that the initiation and maintenance,
by the Government of the United Kingdom, of the extradition proceedings
is inhuman treatment in light of his age and ill-health.
2. Article 3 of the Convention that the anticipated decision by the
courts of the United Kingdom to extradite him to the United States, to
face further proceedings and possibly imprisonment, would constitute
inhuman treatment and punishment in light of his age and ill-health.
3. Article 5 of the Convention that his right to security of person
is denied by reason of the extradition process which exposes him to
treatment contrary to Article 3 of the Convention.
4. Article 8 of the Convention that the extradition process
interferes unlawfully and unnecessarily with his home, family and
private life.
5. Articles 2, 6 and 13 of the Convention.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that the initiation and maintenance of the extradition
proceedings, by the Government of the United Kingdom, constitutes
inhuman treatment in view of his age and ill-health. The applicant also
submits, in this regard, that those proceedings show an imbalance
between the rights of the applicant and the general interest of the
community. This imbalance is, according to the applicant, aggravated
by his alleged inability to challenge the ongoing extradition
proceedings (even by judicial review) on grounds of his age and ill-
health which in turn means that the applicant feels he has no control
over those proceedings.
Article 3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission notes, however, from material submitted by the
applicant subsequent to the registration of his application, that it
appears that he has recently made an application for leave to take
judicial review proceedings to seek a declaration that the Secretary
of State and/or the Director of Public Prosecutions has the power to
discontinue the extradition proceedings, the latter pursuant to section
23 of the Prosecution of Offences Act 1985. The applicant also seeks
an order compelling either of those authorities to use their powers to
make a decision as to whether the extradition proceedings should be
discontinued in light of the age and ill-health of the applicant. In
addition the judicial review proceedings appear to be ongoing.
In view of the above, the Commission finds this complaint
premature and inadmissible on grounds of non-exhaustion within the
meaning of Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant further complains under Article 3 (Art. 3) of the
Convention that, in light of his age and ill-health, the anticipated
decision by the courts of the United Kingdom to extradite him to the
United States, where he would face further proceedings and possible
imprisonment, would amount to inhuman treatment and punishment.
The Commission recalls the judgment of the Court in the
Vijayanathan and Pusparajah case (Eur. Court H.R., Vijayanathan and
Pusparajah judgment of 27 August 1992, Series A no. 241, p. 87 para.
46). Both applicants, in that case, had already been directed to leave
French territory, Mr. Pusparajah's application for exceptional leave
to remain had been rejected and therefore all indications, in terms of
the final decision on expulsion, were against the applicants.
Nonetheless the Court, concluded that the applicants were not "victims"
within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention
because the final expulsion order had not, in fact, been made.
In the present case, the Commission notes that no decision to
extradite the applicant has, in fact, been taken by any domestic court.
Indeed the applicant has received no court order, ministerial direction
or even any formal indication of a preliminary nature in favour of his
extradition. Therefore the Commission finds that, as matters stand, the
applicant cannot claim to be a "victim of a violation" within the
meaning of Article 25 para. 1 (Art. 25-1) of the Convention.
Accordingly the Commission concludes that this complaint of the
applicant is incompatible ratione personae with the provisions of the
Convention and must be rejected under Article 27 para. 2 (Art. 27-2)
of the Convention.
3. The applicant also complains that his right to security of person
is denied, because of the extradition process which exposes him to
treatment contrary to Article 3 (Art. 3) of the Convention, and he
invokes Article 5 (Art. 5) of the Convention in this regard.
The Commission considers that, in view of the finding (at 1.
above) in relation to Article 3 (Art. 3) of the Convention, this
complaint of the applicant is also inadmissible on grounds of non-
exhaustion pursuant to Article 27 para. 3 (Art. 27-3) of the
Convention.
4. The applicant complains that the extradition process constitutes
an unlawful and unnecessary interference with his home, private and
family life and invokes Article 8 (Art. 8) of the Convention in this
regard.
Article 8 para. 1 (Art. 8-1) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence."
The Commission considers that the applicant has not substantiated
his complaint under Article 8 (Art. 8) of the Convention. Moreover the
Commission notes that the applicant has not been detained at all, and
has been living at home, since the commencement of the extradition
proceedings. The Commission therefore concludes that the applicant's
complaint in this regard is manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant complains under Articles 2, 6 and 13
(Art. 2, 6, 13) of the Convention and in this regard the Commission has
considered all of the facts and issues contained in the present application.
Article 2 (Art. 2) of the Convention
The Commission has considered the complaint of the applicant
under Article 2 (Art. 2) of the Convention in the context of the
applicant's submissions as to the impact on his health of the ongoing
extradition proceedings in the United Kingdom Government.
Article 2 para. 1 (Art. 2-1) of the Convention reads 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."
However, even assuming that it is possible to examine this
complaint under Article 2 (Art. 2) of the Convention in light of the
above finding in respect of Article 3 (Art. 3) of the Convention, the
Commission finds that the applicant has not demonstrated that it is the
impact of the ongoing proceedings that threatens his life.
Accordingly the Commission concludes that this complaint under
Article 2 (Art. 2) of the Convention is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Article 6 (Art. 6) of the Convention
The Commission has considered the complaint of the applicant
under Article 6 (Art. 6) of the Convention in the context of the
applicant's initial claim that he had no opportunity to raise the issue
of his age and ill-health to challenge the ongoing extradition
proceedings. The Commission has also considered the applicant's
complaint under Article 6 (Art. 6) of the Convention in the context of
his claim that he did not receive, at the time of his arrest nor
subsequently, the information given to the Government of the United
Kingdom (by the Government of the United States grounding the request
for extradition) or the information laid before the Magistrates' Court
(by the Government of the United Kingdom).
The relevant parts of Article 6 (Art. 6) of the Convention read
as follows:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law....
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language he understands
and in detail, of the nature and cause of the accusation
against him;...."
The Commission recalls that Article 6 paras. 1 and 3
(Art. 6-1, 6-3) of the Convention are not applicable to proceedings
concerning extradition to a foreign country (No. 15776/89, Dec.5.12.89,
D.R. 64 p. 269). Thus the Commission finds that the complaints of the
applicant, in this regard, are incompatible ratione materiae with the
provisions of the Convention and must be rejected pursuant Article 27
para. 2 of (Art. 27-2) the Convention.
Article 13 (Art. 13) of the Convention
The Commission has examined the applicant's complaint under
Article 13 (Art. 13) of the Convention in the context of the
applicant's earlier submissions that he has no domestic remedy, in
respect of the above complaints, because some remedies which are
normally open to those charged with domestic criminal charges, (for
example, nolle prosequi, stay on proceedings which are an abuse of the
process of the court, habeas corpus or judicial review), are not
available or effective in extradition proceedings.
Article 13 (Art. 13) of the Convention provides 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."
As noted by the Commission at 1. above, the applicant has
recently made an application for leave to issue judicial review
proceedings and is pursuing a remedy in the domestic courts which may
be effective. The Commission therefore finds this complaint premature
and accordingly manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
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