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