LAUNDER v. THE UNITED KINGDOM



                      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 Secretary of State taken on 31 July 1995 and 21 December 1995

to order the applicant's extradition and found that at that time the

Secretary of State had not acted irrationally in concluding that it was

probable that specialty protection would be provided.  He also states

that the Surrender of Fugitive Offenders Agreement signed on 5 November

1997 between the United Kingdom and the HKSAR is not yet in force and

that its terms are not sufficiently clear and do not provide the

necessary protection against re-surrender to the P.R.C.

      The applicant also argues that he faces serious risks of

violations of his rights even if he is not transferred to other parts

of the P.R.C.  The applicant does not dispute that the HKSAR courts as

they are operating as of October 1997, when his submissions were made,

are capable of determining an ordinary criminal charge.  However, he

contends that his case is highly sensitive as he, a citizen of the

former colonial power, would be tried for corruption and would be

treated as an example of the "corrupt colonial past". The applicant

also submits that the Government have failed to answer the issues

relating to the "act of State" doctrine.

      Furthermore, there should be no blind confidence that the system

will continue to operate normally.  In particular, the Legislative

Council elected following the electoral reform of 1995 has been

replaced by an appointed provisional legislature.  There is strong

likelihood that the 1998 elections will also not be democratic.

Furthermore, there have been already important amendments in existing

Hong Kong laws.

      The applicant further refers to a decision of July 1997 of a

Court of Appeal in the HKSAR where the court was dealing with a

challenge over the status of criminal proceedings commenced before the

transfer of sovereignty.  The Court found that the previous laws were

in force in the HKSAR and that the indictment was validly continued.

The Court also, apparently in obiter dicta, confirmed the validity of

the provisional legislature and accepted the argument of the solicitor-

general that, as previously Hong Kong courts could not question the

acts of the British Government, the Court could not now review the acts

of the P.R.C. Government for their conformity with the Basic Law.  This

finding has been criticised in the press by a renowned professor, who

has also stated that it is not binding on other courts and is not

final. The applicant has not submitted a copy of the judgment.

b)    The Commission has first examined the applicant's complaint under

Article 2 (Art. 2) of the Convention.

      The Commission recalls that Article 2 (Art. 2) contains two

separate though interrelated basic elements. The first sentence of

paragraph 1 sets forth the general obligation that the right to life

shall be protected by law.  The second sentence of this paragraph

contains a prohibition of intentional deprivation of life, delimited

by the exceptions mentioned in the second sentence itself and in

paragraph 2 (cf. No. 17004/90, Dec. 19.5.92, D.R. 73 p. 155).

      The Commission finds nothing to indicate that the extradition of

the applicant would amount to a violation of the general obligation

contained in the first sentence of paragraph 1.

      As regards intentional deprivation of life the Commission further

recalls its case-law according to which it is not excluded that an

issue might be raised under Article 2 (Art. 2) in circumstances in

which an expelling State knowingly puts the person concerned at such

high risk of losing his life as for the outcome to be a near-certainty.

However, there must be a "near-certainty" of loss of life to make

expulsion an "intentional deprivation of life" prohibited by Article

2 (Art. 2).  Allegations of the existence of a "real risk" only fall

to be examined under the prohibition of inhuman treatment as enshrined

in Article 3 (Art. 3) (No. 25894/94, Bahaddar v. the Netherlands, Comm.

Report 13.9.96, para. 78, pending before the Court).

      The Commission considers that a similar approach is justified not

only in cases of expulsion, but also of extradition.

      In the present case the applicant maintains that if convicted

following his extradition he risks the death penalty.  The Commission

notes, however, that it is undisputed that the death penalty cannot be

imposed in the HKSAR for the offences in respect of which the

extradition of the applicant was sought and granted.  Nor has the

applicant established a real likelihood that the death penalty will be

introduced for such offences and imposed in the event that he is

convicted of the offences with which he is charged.  The Commission

does not accordingly find that the facts of the case disclose a real

risk, let alone a risk attaining the level of near-certainty for the

purposes of Article 2 (Art. 2), that the death penalty would be imposed

on the applicant in the HKSAR.

      As regards the complaint that the applicant may be deprived of

his life arbitrarily or tortured to death, or that he may be

surrendered to other parts of the P.R.C. where he will face the risk

of the death penalty, the Commission finds it convenient to consider

this complaint in conjunction with the complaint under Article 3

(Art. 3) of the Convention.

c)    Examining the applicant's complaints under Article 3 (Art. 3) of

the Convention, the Commission recalls that extradition to another

State where there are substantial grounds for believing that the

applicant would be in danger of being subjected to torture or to

inhuman or degrading treatment or punishment may raise an issue under

Article 3 (Art. 3) of the Convention (cf. Eur. Court HR, Soering v. the

United Kingdom judgment of 7 July 1989, Series A no. 161; No. 22742/93,

Dec. 20.1.94, D.R. 76, p. 164).

      The examination of the existence of a risk of ill-treatment in

breach of Article 3 (Art. 3) must necessarily be a rigorous one in view

of the absolute character of this provision and the fact that it

enshrines one of the fundamental values of democratic society.  In

determining whether substantial grounds have been shown for believing

the existence of a real risk of ill-treatment the issue must be

assessed in the light of the material placed before the Convention

organs or, if necessary, material obtained proprio motu (cf., mutatis

mutandis, Eur. Court HR, Vilvarajah v. the United Kingdom judgment of

30 October 1991, Series A no. 215, p. 36, paras. 107 and 108).

      In the present case it appears undisputed that the law and the

legal system in Hong Kong, as they existed before the transfer of

sovereignty on 1 July 1997, would have provided sufficient guarantees

protecting the applicant from arbitrary death, torture or inhuman

treatment or punishment in the event of his extradition.  The applicant

claims, however, that after 1 July 1997 when Hong Kong became a

"special administrative region" within the P.R.C. these guarantees are

in the process of being or even have already been dismantled or

otherwise rendered insufficient and ineffective.

      However, the Commission notes that under a binding international

treaty the P.R.C. has undertaken to preserve the independent legal and

judicial system of the HKSAR for a period of 50 years and that it has

not been shown that after 1 July 1997 the P.R.C. has disregarded its

international obligations.  In particular, the criminal law and the

criminal justice system of Hong Kong have been preserved basically

unchanged.

      The Commission further considers that the applicant has not

established that the modifications in certain laws and institutions and

the other political and societal changes in the HKSAR referred to by

him can be said to affect his position, in the event of his

extradition, in such a manner as to demonstrate that there exists a

risk of his being subjected to ill-treatment in violation of Article 3

(Art. 3) of the Convention.

      The Commission attaches importance to the provisions of the Joint

Declaration and the Basic Law, to the information about the judicial

system of the HKSAR, to the fact that the International Covenant on

Civil and Political Rights is in force for the HKSAR, as well as to the

information about developments after 1 July 1997.

      The applicant claims that he risks a transfer to other parts of

the P.R.C. where he would not be protected by the safeguards of the

HKSAR legal system.  It is pointed out that, as acknowledged by the

House of Lords, there exists a gap in the specialty arrangements, in

that Section 17(2) of Hong Kong Ordinance No. 23, which concerns the

extradition of fugitives, is silent about their re-surrender to the

P.R.C.  This gap was to be filled when an extradition agreement between

the United Kingdom and the HKSAR had been concluded, as had already

been the case with several other countries.  The House of Lords noted

that as of May 1997 such an agreement had been drafted but not yet

signed.

      The Commission observes that the agreement in question was signed

between the United Kingdom and the HKSAR on 5 November 1997 and that

its Article 18 prohibits, in the case of a fugitive offender who has

been surrendered by the United Kingdom to the HKSAR, the re-surrender

of the fugitive "to any other jurisdiction for an offence committed

before his surrender" unless, inter alia, the United Kingdom consents.

      The applicant, however, contends that the agreement of 5 November

1997 does not provide an adequate safeguard against his transfer from

the HKSAR to other parts of the P.R.C.  He points out, inter alia, that

the unspecified procedures referred to in Article 20 of the agreement

which are necessary to bring it into force have not yet been completed;

that the agreement has not yet been laid before the United Kingdom

Parliament or the Legislative Council of the HKSAR and cannot thus be

regarded "the law" for the purposes of the Convention; that the

agreement does not regulate transfers as such of fugitive offenders

between the HKSAR and other parts of P.R.C. but only applies to cases

where there has been a formal request by the P.R.C. for re-extradition

of the person surrendered to the HKSAR; and that the use of the

expressions "area", "jurisdiction" and "region" in the agreement gives

cause for doubt as to whether the agreement would in any event prevent

the re-transfer of a fugitive offender from the HKSAR to other parts

of the P.R.C.

      The Commission in the first place observes that the House of

Lords did not rely solely on the future signing of an extradition

agreement when it found that it was reasonable to conclude that "the

prohibitions which are needed to ensure that the [applicant] is not

surrendered to the P.R.C. will be in place on and after 1 July 1997".

The House of Lords noted the existence of safeguards against the

applicant's removal from the jurisdiction of the HKSAR.  In particular,

despite the gap in the specialty protection arrangements, there existed

the provisions of the Basic Law relating to the rights and freedoms and

to the judiciary.  Also, the House of Lords, which delivered its

judgment in May 1997, noted that it was stated policy of the Hong Kong

Government and of the incoming Government of the HKSAR that it would

not surrender persons to places outside its jurisdiction otherwise than

pursuant to a law and subject to safeguards.

      Based on the evidence before it the Commission does not find any

reason to reach a different conclusion.  The Commission notes in

particular that the applicant has not claimed that there exists any law

which could in some manner serve as a basis for his transfer to the

P.R.C. or that there has been an indication that this would be

requested.

      The signing of the agreement of 5 November 1997 represents in the

view of the Commission a further important safeguard against the risk

of the re-surrender of the applicant from the HKSAR to other parts of

the P.R.C.

      It is true, as pointed out by the applicant, that the agreement

has not yet entered into force and that its terms, including the terms

of its Article 18, have as yet not been the subject of judicial

examination.  Nevertheless the Commission finds in the agreement a

clear indication on the part of the contracting parties that fugitive

offenders, once surrendered by the United Kingdom to the HKSAR in

respect of specific offences, would not be transferred to other parts

of the P.R.C. without the consent of the United Kingdom.  The

Commission finds no reason to doubt that the parties to the agreement

would abide by its letter and spirit even if a fugitive offender were

to be surrendered to the HKSAR before the agreement came into effect.

Indeed, under international treaty law parties which have signed a

treaty are under an obligation not to jeopardize the object and purpose

of the treaty before its final entry into force.  This rule of

customary international law is to be found codified in Article 18 of

the Vienna Convention on the Law of Treaties.  Any transfer to the

P.R.C. of a fugitive extradited by the United Kingdom to the HKSAR even

before the entry into force of the agreement of 5 November 1997 would

jeopardize the very purpose and object of this agreement.

      Insofar as the applicant refers to the "act of State" doctrine,

the Commission finds that he has not convincingly shown that this would

apply in any way in his case.  The Commission notes in particular that

in accordance with Article 19 of the Basic Law the "act of State"

doctrine concerns primarily, if not exclusively, "defence" and "foreign

affairs".  Furthermore, the way this doctrine operates is apparently

that in the examination of a case before the courts in the HKSAR

"questions of fact" concerning acts of State have to be accepted as

established as they are stated in a certificate obtained from the

executive.  It is unclear how in these circumstances the "act of State"

doctrine, even if it is applied in a context wider than defence and

foreign affairs, could bring about the transfer of the applicant to

other parts of the P.R.C. or could otherwise affect him.

      In sum, having regard to all the evidence in the case, the

Commission finds that the applicant has not established the existence

of a real risk, let alone a "near-certainty", that in the event of his

extradition to the HKSAR he would be deprived of life in violation of

Article 2 (Art. 2) of the Convention or subjected to torture or inhuman

treatment or punishment contrary to Article 3 (Art. 3).

      This part of the application is therefore manifestly ill-founded

and must be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicant also complains under Article 6 (Art. 6) of the

Convention that if extradited he would face a real risk of a flagrant

denial of his right to a fair trial.

      Article 6 (Art. 6) of the Convention, insofar as relevant,

provides as follows:

      "1.  In the determination 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 ...

      2.   Everyone charged with a criminal offence shall be presumed

      innocent until proved guilty according to law.

      ..."

      The parties refer partly to their observations as regards the

complaints under Articles 2 and 3 (Art. 2, 3) of the Convention.

      The Government also address the issue whether or not a State's

responsibility can be engaged by extraditing an individual to a State

in which it appears that his trial will not, or might not, be conducted

in accordance with Article 6 (Art. 6) of the Convention.  The

Government refer to the Soering judgment (Eur. Court HR, loc. cit.) and

to the Commission's decision in application no. 10308/83, D.R. 36, p.

209 and state that there is no general principle that a possible breach

in the receiving State of any of the rights and freedoms guaranteed by

the Convention would engage the extraditing State's responsibility, the

only exception in the case-law having concerned Article 3 (Art. 3) of

the Convention. The Government submit that the extraditing State's

responsibility may also conceivably be engaged in respect of other

provisions of the Convention, but only where the rights and freedoms

at risk are among those most fundamental rights and freedoms for which

Article 15 (Art. 15) of the Convention allows no derogation, and when

the alleged violation in a particular case would be "exceptional" and

"flagrant".

      The Government then point out that Article 6 (Art. 6) of the

Convention is not among the provisions for which Article 15 (Art. 15)

allows no derogation and contend that the applicant has not established

that his case is exceptional or that he faces a real risk of flagrant

denial of a fair trial.

      As regards the alleged violations of the Convention related to

the passage of time the Government submit that this issue has been

dealt with in detail by the domestic courts, which found that the

applicant, who was "intentionally covering his tracks as well as

avoiding arrest", was responsible for most of the delay.

      In respect of the issue of State responsibility the applicant

replies that other provisions of the Convention, notably Article 6

(Art. 6), may also be breached by an extraditing State because of risks

concerning events in the receiving State.  The applicant dismisses as

being without sound foundation the Government's argument that this can

happen only in cases concerning complaints under provisions in respect

of which no derogation is allowed according to Article 15 (Art. 15) of

the Convention.  He refers to the cases decided under Article 8

(Art. 8) of the Convention.  Also, in the Soering judgment (Eur. Court

HR, loc. cit.) the Court did not exclude that an issue might be raised

under Article 6 (Art. 6) where a fugitive subject to an extradition

order risks a flagrant denial of a fair trial in the country requesting

extradition.  Moreover, the Court in the case of Drozd and Janousek v.

France and Spain (Eur. Court HR, judgment of 26 June 1992, Series A no.

240), considering a complaint about imprisonment in France following

a conviction in Andorra, found that although "the Convention does not

require the Contracting Parties to impose its standard on [third]

States", they are "obliged to refuse their co-operation if it emerges

that the conviction is a result of a flagrant denial of justice".  The

applicant submits that, just as France had to consider the fairness of

a trial abroad before receiving and detaining prisoners, so the United

Kingdom cannot ignore a blatantly unfair trial in the HKSAR which will

follow their decision to extradite him.

      As regards the passage of time, the applicant reiterates that if

extradited he would be tried some 19 years after the alleged offences.

He submits that the way in which the Divisional Court and the Secretary

of State dealt with his ensuing arguments was wholly illogical.  They

relied on the fact that the applicant "took steps to conceal ... that

the trail" led to him, which was not true.  Moreover, this reasoning

is incompatible with the presumption of innocence and therefore with

Article 6 para. 2 (Art. 6-2) of the Convention.  Also, between 1989 and

1993 the applicant was travelling with his own passport and could have

been easily apprehended.  The United Kingdom Government are directly

responsible for the delay between March 1990 until the present.

      The Commission need not decide whether the responsibility of a

returning State may be engaged under Article 6 (Art. 6) of the

Convention where a fugitive risks a flagrant denial of a fair trial in

the requesting State, since the Commission considers that it has in any

event not been shown that such a risk exists in the applicant's case.

      The Commission refers in this respect to its findings concerning

the preservation of the HKSAR criminal justice system.

      As regards the complaint concerning the passage of time since the

alleged offences and its effect on the fairness of the trial, the

Commission notes that the domestic courts dealt fully with the

applicant's allegations, which were substantially the same as those

advanced now before the Commission.  The Commission does not consider

that the findings of the domestic courts concerning the responsibility

for the delay and its likely effects were arbitrary or unreasonable.

      Furthermore, the Commission notes that in the event of the

applicant's extradition it will be open to him to raise an objection

before the HKSAR courts which will then have to examine, inter alia

under Article 87 of the Basic Law which guarantees the right to a fair

trial, whether or not in all the circumstances of the case a fair trial

could take place.

      Insofar as the applicant has also invoked Article 6 para. 2

(Art. 6-2) of the Convention in that the domestic courts in the United

Kingdom allegedly presumed his guilt when stating, in the context of

the issue of passage of time, that he was covering his tracks, the

Commission does not consider that this violated the presumption of

innocence.  The impugned statement was made in the context of the

Court's assessment of the question whether the applicant's conduct

objectively contributed to the delay in the proceedings and cannot in

the view of the Commission be interpreted in any way as a finding that

the applicant was guilty of the offences with which he is charged.

      The Commission finds, therefore, that this part of the

application is also manifestly ill-founded and must be rejected under

Article 27 para. 2 (Art. 27-2) of the Convention.

3.    The applicant also complains under Article 8 (Art. 8) of the

Convention that his extradition would be an unlawful and

disproportionate interference with his right to respect for his family

life.

      This provision, insofar as relevant, provides as follows:

      "1.  Everyone has the right to respect for his ... family life

      ...

      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 ... for the

      prevention of disorder or crime ..."

      The parties have not made observations separate from the general

submissions summarised above.

      The Commission recalls that the Convention does not guarantee a

right not to be extradited (Eur. Court HR, Soering judgment, loc. cit.,

p. 33, para. 85; cf. No. 10427/83, Dec. 12.5.86, D.R. 47, p. 85).

      Nevertheless, an extradition decision may constitute an

interference with the right to respect for family life.  Such an

interference is in breach of Article 8 (Art. 8) unless it is justified

under paragraph 2 of this provision as being "in accordance with the

law" and "necessary in a democratic society" for one of the aims set

out therein (No. 25342/94, Dec. 4.9.95, D.R. 82, pp. 134, 148).

      The Commission finds that the applicant's extradition would

amount to an interference with his family life, it being common ground

that his wife currently lives in the United Kingdom.

      However, it appears undisputed that the decision to extradite the

applicant complied with the formal requirements of United Kingdom law.

As regards the applicant's claim that his extradition some 19 years

after the alleged offences would be contrary to legal certainty and

that the courts' approach to the issue of the passage of time was not

reasonably foreseeable the Commission has already found that when

examining whether extradition should be allowed the decisions of the

domestic courts were neither arbitrary nor unreasonable.

      Furthermore, the Commission finds that the decision to extradite

the applicant has a legitimate aim, namely the prevention of disorder

or crime.

      As regards the question whether the interference was necessary,

the Commission recalls that the notion of necessity implies a pressing

social need and requires that the interference at issue be

proportionate to the legitimate aim pursued (Eur. Court HR, Beldjoudi

v. France judgment of 26 March 1992, Series A no. 234-A, p. 27, para.

74).

      The Commission considers that it is only in exceptional

circumstances that the extradition of a person to face trial on

charges of serious offences committed in the requesting State would be

held to be an unjustified or disproportionate interference with the

right to respect for family life.  The Commission finds that in the

present case no such circumstances have been shown to exist. The

Commission notes that the applicant and, apparently, his family lived

in Hong Kong for about ten years.  Also for several years prior to the

applicant's arrest they were living outside the United Kingdom and were

changing their domicile.  Furthermore, the applicant has not shown that

his wife or children would not be able to travel with him to the HKSAR

or visit him there.

      The applicant's complaint under Article 8 (Art. 8) of the

Convention is therefore manifestly ill-founded and must be rejected

under Article 27 para. 2 (Art. 27-2) of the Convention.

4.    The applicant has also invoked other provisions of the

Convention.  Under Article 5 (Art. 5) of the Convention he states that

this provision includes the implicit requirement of promptness in

dealing with extradition matters and precludes extradition which would

give rise to a serious risk of arbitrariness and unjustified detention.

The applicant has also invoked Articles 7 and 14 (Art. 7, 14) of the

Convention.

      Assuming that an issue involving the responsibility of the United

Kingdom may arise, the Commission notes that these complaints are

partly based on the same factual allegations as regards the situation

in the HKSAR which have already been dealt with above.  In any event,

the Commission finds that they do not disclose any appearance of a

violation of the Convention.

      It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

5.    The applicant also complains under Article 13 (Art. 13) of the

Convention stating that he did not have an effective remedy in the

United Kingdom against the alleged breaches of his Convention rights.

      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."

      The Government submit that the issue is indistinguishable from

that in the case of Vilvarajah (Eur. Court HR, loc. cit.) where it was

held that the judicial review of the decision of the Secretary of State

under United Kingdom law provided an adequate remedy.

      The applicant submits that the House of Lords limited its review

of the decisions of the Secretary of State to the issue of

irrationality.  Such scope of review of the executive's decision

allegedly does not measure up to the Article 13 (Art. 13) standard

described in the case of Vilvarajah (Eur. Court HR, loc. cit.).

      The Commission agrees with the Government that in the present

case there are no elements which would lead to a conclusion different

from that in the Vilvarajah judgment (loc. cit.).

      It follows that the remainder of the application is also

manifestly ill-founded and has to be rejected under Article 27 para. 2

(Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                        S. TRECHSEL

          Secretary                           President

      to the Commission                   of the Commission

 

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