AS TO THE ADMISSIBILITY OF
Application No. 15933/89
by Lorrain OSMAN
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 January 1991, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. J. RAYMOND, Deputy 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 19 December
1989 by Lorrain OSMAN against the United Kingdom and registered on
21 December 1989 under file No. 15933/89;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the applicant's further argument submitted on 25 May 1990;
- the Government's observations of 20 June 1990 and the
applicant's reply of 10 July 1990;
- further comments submitted by the Government on 7 September
1990 and the applicant's reply of 28 September 1990;
- the hearing held on 14 January 1991;
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 Messrs. Johnson
Walsh and Co., Solicitors, Birmingham.
This is the applicant's second 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.
The facts of the present case, as submitted by the parties,
may be summarised as follows.
A. The particular facts of the case
1. Extradition proceedings
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 (the 1967 Act).
His house was searched and a large amount of documentation was seized
by the police. Others accused of the same offences were also arrested
in London and Hong Kong around that time. The applicant has been in
custody continuously since that date. The Government of Hong Kong
have sought his extradition from the United Kingdom to Hong Kong on
multiple charges of fraud and these proceedings have given rise to the
application to the Commission.
The applicant was remanded in custody until 16 December 1985
when the Magistrate fixed 27 January 1986 as the date by which the
Secretary of State had to provide him with an authority to proceed
with the extradition committal or the applicant would be discharged in
accordance with section 7 (4) of the 1967 Act. Before that date
arrived, a further Hong Kong warrant was issued on 20 January 1986
increasing the charges to 29. All charges were indicated in the new
warrant. 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 to the Chief Metropolitan Stipendiary
Magistrate an authority to proceed under section 5 of the 1967 Act in
respect of the 29 offences. On 25 April 1986 a further warrant was
issued against the applicant in Hong Kong, increasing the number of
charges to 43. A second extradition request was made to the Secretary
of State on 28 April, covering all of these charges, and on 13 May
1986 the Secretary of State issued to the Chief Metropolitan
Magistrate a further authority to proceed under section 5 of the 1967
Act in respect of the 43 offences. These offences concerned 11
offences of conspiracy to defraud contrary to common law, 11 offences
of conspiracy to steal contrary to common law, seven offences of
accepting an advantage as an agent, eight offences of theft and six
offences of false accounting.
The numerous allegations against the applicant derive from the
operations of a deposit-taking company, known as "BUMIPUTRA MALAYSIA
FINANCE LIMITED" (BMFL) which was a wholly owned subsidiary of "BANK
BUMIPUTRA MALAYSIA BEHRAD" (BBMB), a Government owned bank in
Malaysia. It is claimed that over a period of four years, between
1979 and 1983, while the applicant was a non-executive director of
both companies, he and others fraudulently authorised advances of sums
to a group of companies known as "THE CARRIAN GROUP" without obtaining
sufficient security and contrary to accepted banking rules and
practice, and also contrary to the established rules within BMFL and
BBMB. The amount of money involved in the loans, in three different
currencies, was in excess of US$800,000,000. The advances allegedly
amounted to offences of conspiracy to defraud and to steal, theft and
false accounting. They were accompanied by allegedly corrupt payments
to the applicant totalling about £12,000,000.
The applicant's defences to these charges are that authority
and approval were forthcoming from BBMB, the parent bank, for all
activities of BMFL and that full reporting ensured that the Board of
BBMB and shareholders were aware of the activities of BMFL and not
only raised no objection but instigated a number of the transactions
which are the subject-matter of the charges brought against the
applicant in respect of 42 of the alleged offences. The applicant
claims that the original warrant issued against him on 30 November
1985 was invalid but he only became aware of this from 13 October 1988
onwards. Other information relevant to the lawfulness of his arrest
and detention was allegedly denied him for over three years in lengthy
proceedings, including proceedings in Hong Kong, which have been
resisted at every stage. The length of proceedings was also increased
by the large number of charges involved even though only specimen
charges will probably be pursued if he is in fact extradited.
The extradition proceedings against the applicant were heard
at Bow Street Magistrates' Court in London over a period between
27 May 1986 and 1 June 1987 (on 27 May to 22 June 1986, 28 October to
5 December 1986, 26 January to 2 February 1987, 27 April to 22 May
1987 and 1 June 1987). The hearing dates were fixed from time to time
taking account of the convenience of counsel. The hearing lasted
66 days and involved evidence being taken over 42 days and 24 days of
legal submissions. Exhibits in the case numbered approximately 5,000
and ran into some 30,000 pages (150 volumes). There were 29
Malaysian, 58 Hong Kong and 12 United Kingdom witnesses, who provided
over 2,800 exhibits. The applicant and his advisers received copies
of most of the evidence two months before the hearing commenced.
However, other evidence, amounting to 26 volumes, was served on the
applicant on 16 December 1986, over six months after the proceedings
had commenced. Part of the hearings (16 days) were taken up with the
applicant's challenges to the admissibility of certain evidence. The
applicant's counsel sought lengthy adjournments, in view of the volume
of evidence and the complexity of legal argument, which adjournments
were only granted by the Chief Magistrate when satisfied that the
applicant had no objection to remaining in custody. For example, delay
occurred between 22 June 1986 and 28 October 1986 because of the
unavailability of the applicant's counsel, and on two occasions
between 5 December 1986 and early March 1987 because the applicant's
counsel had underestimated the length of his submissions.
The applicant contested most matters at the hearing and
counsel informed the Chief Magistrate that the applicant was not
concerned with the time the proceedings were taking as his
instructions were to oblige the Hong Kong Government strictly to prove
its case and to make no admissions of any kind. As a result the
applicant did not permit the statements to be taken "as read". The
Magistrate offered to sit six days a week, but that was rejected by
the applicant's counsel.
On 1 June 1987 the Chief Magistrate found ample prima facie
evidence of the applicant's involvement in 42 of the 43 fraud and
corruption offences and, pursuant to section 7 (5) of the 1967 Act,
committed the applicant to prison to await the order of the Secretary
of State to extradite him to Hong Kong.
2. Habeas corpus proceedings
a) Habeas corpus 1
On 10 June 1987 the applicant applied to the Divisional Court
for an order of habeas corpus and also for leave to seek judicial
review to quash the authority issued by the Secretary of State to
deliver the applicant to the Hong Kong authorities. (Such
applications have a suspensive effect on extradition, pursuant to
section 8 of the 1967 Act.) It was alleged, inter alia, that the
Chief Magistrate was wrong in law in committing the applicant on the
basis of the offences with which he was charged. The parties to the
proceedings were the applicant, the Government of Hong Kong and the
Governor of Pentonville Prison where the applicant was detained. The
parties' representatives liaised on the question of a hearing date.
The respondents sought a hearing in November 1987, but the applicant
requested January 1988. He subsequently asked for its deferral until
22 February 1988.
After interim procedural hearings on 11 November 1987 and
21 January 1988, a hearing of this action took place between
22 February 1988 and 19 March 1988. The application was rejected by
the Divisional Court on 30 March 1988 in a lengthy judgment. Leave to
appeal to the House of Lords was rejected by the Divisional Court on
29 April 1988. On 13 May 1988 the applicant sought leave from the
House of Lords which refused it on 14 July 1988.
b) Habeas corpus 2
In the meantime, on 8 June 1988, the applicant introduced a
second application for habeas corpus to the Divisional Court based on
a claim that he was a Liberian diplomat and hence immune from
prosecution. On 13 July 1987 the Foreign Office of the United Kingdom
had received a claim for diplomatic immunity from prosecution for
criminal offences or extradition on the basis that the applicant had
held Liberian diplomatic status since 1985. The applicant had not
made this claim of immunity earlier on arrest, in the committal
proceedings or in the first habeas corpus proceedings. The Foreign
Office refused to accept retrospective notification of the diplomatic
appointment or to acknowledge the applicant's entitlement to
diplomatic privileges and immunities. At one point in October 1988
the Liberian Embassy said that the applicant's immunity had been
waived "to allow the law to take its course".
The parties to the proceedings were the applicant, the
Governor of Pentonville Prison, the Foreign and Commonwealth Office,
the Liberian Government and the Hong Kong Government. A hearing was
set down for 17 October 1988 but the applicant refused to serve any
documentation relating to this application upon the Hong Kong
Government. On legal advice, he considered that the issue of his
diplomatic immunity was between the Liberian and United Kingdom
authorities and a question to which the Hong Kong authorities should
not be a party. The Hong Kong Government then had to apply to the
Divisional Court on 13 October 1988, as a consequence of which they
were served with the documents. On 17 and 21 October 1988 the
applicant applied for and obtained adjournments of the proceedings in
order to investigate apparent irregularities in the issue of the
original arrest warrant of 30 November 1985 in Hong Kong. The Court
expressed its concern about these proceedings dragging on, and urged
the applicant's counsel to deal with every possible remaining argument
against the applicant's extradition at the next hearing to be fixed
for the second half of November 1988.
The Government of Liberia, having waived their claim on behalf
of the applicant in respect of diplomatic immunity in October 1988,
sent a diplomatic note to the Foreign and Commonwealth Office which
purported to renew the claim for diplomatic immunity. The note
protested the applicant's continued detention and explained that the
previous waiver had only been for the purposes of the proceedings
before the Divisional Court in habeas corpus 2. Proceedings in Hong
Kong were successful, with the original arrest warrant being quashed
on 4 May 1989 by the Hong Kong Court of Appeal.
The hearing of the second habeas corpus application took place
before the Divisional Court between 28 November 1988 and 1 December
1988. The application was rejected by decision of 21 December 1988.
Leave to appeal to the House of Lords was refused by the Divisional
Court on 19 January 1989. An application for leave to appeal was
lodged with the House of Lords on 24 February 1989. This application
was subsequently adjourned at the applicant's request on 9 May 1989
and ultimately refused on 1 February 1990.
c) Habeas corpus 3
On 6 June 1989 the applicant lodged a third application for a
writ of habeas corpus with the Divisional Court on the grounds that
the quashed warrant of arrest in Hong Kong had invalidated the
extradition proceedings. The hearing commenced on 4 October 1989, the
parties being the applicant, the Governor of Pentonville Prison, the
Secretary of State for the Home Department, the Secretary of State for
Foreign Affairs, a Metropolitan Stipendiary Magistrate and the Hong
Kong Government. A further claim for diplomatic immunity was
withdrawn. As a result of information acquired in September 1989, the
applicant made new challenges to the lawfulness of the extradition
proceedings and sought an adjournment pending an independent inquiry
into the conduct of all those involved. He also requested an
adjournment pending the outcome of proceedings he had initiated in
Malaysia. The Court adjourned the matter from 5 to 19 October 1989 to
enable the parties to file further affidavits. The hearing ended on
26 October 1989. The Divisional Court, refusing this application by
the applicant in its judgment of 17 November 1989, criticised the
applicant's conduct of his application which had contained baseless
allegations of the most serious kind against all parties. It held
that the existence of a valid warrant in Hong Kong was not a
requirement under United Kingdom law for the issue of the provisional
warrant for the applicant's arrest, the latter warrant being an
emergency measure. A valid warrant is, however, a requirement for an
authority to proceed, but by the time the Secretary of State had sent
the Magistrate the authority to proceed on 24 January 1986, a second
warrant covering 29 charges had been issued on 20 January 1986 by a
Hong Kong court.
Applications for leave to appeal to the House of Lords were
again refused, by the Divisional Court on 5 December 1989 and by the
House of Lords on 1 February 1990.
d) Habeas corpus 4
On 5 February 1990 the applicant filed a fourth application
for a writ of habeas corpus on the basis, inter alia, that the
accusations against him were not made in good faith or in the
interests of justice and that, by reason of the passage of time, it
would be unjust and oppressive to return him to Hong Kong. The
parties to the proceedings were the applicant, the Governor of Brixton
Prison, the Secretary of State for Foreign Affairs (until 14 November
1990) and the Hong Kong Government. An issue raised by the
respondents was whether this fourth habeas corpus application was an
abuse of process of the court, contrary to section 14 (2) of the
Administration of Justice Act 1960. A hearing was set for 11 June
1990 after discussions between the applicant's representatives and the
Hong Kong Government about the availability of counsel.
In the interim the applicant sought through Hong Kong courts
to obtain documentation from the Attorney General of Hong Kong. The
Hong Kong Government submitted that the proper forum for such an
application was the Divisional Court in the United Kingdom, which was
seized of the application for habeas corpus. Accordingly, on 4 April
1990, on the applicant's application, the proceedings in Hong Kong
were adjourned generally. On 10 April 1990 he applied to the
Divisional Court in the United Kingdom for a discovery order seeking
the same documents that he had sought in Hong Kong. This application
was listed as a preliminary matter to the habeas corpus proceedings.
Subsequently it was decided to deal with this matter separately on
19 June 1990, the application for habeas corpus being put back to
October 1990 to allow sufficient court time. The discovery
application was heard in the Divisional Court on 19 June 1990 and
refused on 20 June 1990, leave to appeal to the House of Lords also
being refused and the hearing for the habeas corpus application being
fixed for 12 November 1990. The House of Lords itself refused leave
to appeal against the discovery refusal on 26 July 1990.
In October 1990 it was estimated that the hearing time for the
habeas corpus application would have to be increased from two to three
weeks. Various motions were sought by both sides including a motion
from the applicant on 7 November 1990 for discovery of the same
documents which had already been refused in June 1990. A motion
brought on behalf of the Secretary of State for Foreign Affairs to
have himself struck out from the proceedings was granted, after a two
day hearing, on 14 November 1990. A further two day hearing of the
applicant's renewed discovery application took place on 14 to
15 November 1990 and the application was refused.
The habeas corpus application was heard from 15 to 23 November
1990 and refused in a judgment of 12 December 1990. The Divisional
Court held, inter alia, that the application was an abuse of process,
contrary to section 14 (2) of the Administration of Justice Act 1960,
as the applicant should have put forward his whole case for habeas
corpus at the outset and not have kept back separate grounds of
application as a basis for renewed applications to the Court (cf. R v.
Governor of Pentonville Prison, ex parte Tarling <1979> 1WLR1 417).
The Court also held that the accusations against the applicant had
been made in good faith and that it was not unjust or oppressive, by
reason of the passage of time, to return the applicant to Hong Kong.
In this connection it found that the Government had acted diligently
throughout these proceedings with no interval "which could be
stigmatised as 'delay' by the Government in the necessarily complex
circumstances of the case". Although the applicant had been entitled
to pursue his habeas corpus applications, he had to recognise that
they would be time consuming, with inevitable, unpalatable
consequences for him. The Court also noted that the applicant's
agitated inquiry in 1988 about the lawfulness of the original Hong
Kong warrant of 30 November 1985 should have been made in 1986.
However no significance was attached to the point because the
warrant's validity was irrelevant to the lawfulness of the applicant's
arrest in the United Kingdom and his committal for extradition, as had
already been held by the Divisional Court when refusing habeas corpus
3. The Court commented, obiter, that the present case did not
disclose anything which could suggest that the applicant risked a
flagrant denial of a fair trial if returned to Hong Kong, such as
might raise an issue under Article 6 para. 1 of the Convention,
interpreted by the European Court of Human Rights in its Soering
judgment (Eur. Court H.R., Soering judgment of 7 July 1989, Series A
no. 161, p. 45 para. 113).
On the application of the applicant, time for seeking leave to
appeal to the House of Lords was extended to 11 January 1991.
The applicant has been reported in the press as saying that he
will do everything he can to prevent his return to Hong Kong to face
trial. The Government quoted the report to the Commission at the
hearing on 14 January 1991 and it was not contested by the applicant's
representatives. He was quoted as saying, "I could carry on like this
for ever ... I am prepared to remain a remand prisoner for 50 years
if the alternative is going to Hong Kong to face a show trial" ("The
Times" newspaper of 4 December 1990).
3. Bail proceedings
The applicant first applied for release on bail on 20 June
1986 to the Chief Magistrate at Bow Street Magistrates' Court. This
application was unsuccessful because of a fear that the applicant
might abscond. At the time of the applicant's arrest the police
discovered a Portuguese passport and identity card in a false name in
his possession.
The next application for bail was made on 26 July 1989 in the
course of the third habeas corpus proceedings brought by the
applicant. In the course of this application, counsel for the
applicant explained that a second bail application had not been
brought sooner because it was not considered to have any prospects of
success. After hearing the parties the Divisional Court rejected the
application.
A further application for bail was made before the Divisional
Court on 4 October 1989. This application was also unsuccessful. In
rejecting the application, Lord Justice Parker stated as follows :
"The evidence before us indicates that there is a great risk
that he would abscond. There is no right to bail available
to him under the Bail Act, and no reason to differ from the
position of the previous court until we have heard a great
deal more. It is unusual in the process of trial to grant
bail at this sort of stage. Leo (the applicant) has said
more than once that he has devoted his entire resources to
fighting extradition: there is nothing to stop him doing
so, nor am I saying that he should stop, but should it look
to him as though he would after all be extradited from the
way the proceedings were going, he would face a very great
temptation to abscond. Bail is therefore refused."
4. Proceedings in Hong Kong and Malaysia
At the same time as the proceedings described above the
applicant was involved in proceedings in Hong Kong and Malaysia as
part of his efforts to stop his extradition to Hong Kong.
The applicant claimed that the evidence of 43 prosecution
witnesses was taken in Malaysia in January 1986, three months prior to
the final warrant for his arrest issued on 25 April 1986. He stated
that their written statements are likely to be admitted in any trial
in Hong Kong if the court is satisfied that they will be unwilling to
travel there. In addition he pointed out that a main prosecution
witness (Ibrahim Jaafar), who was the general manager of BMFL
throughout its operations, had confessed to various fraud offences and
had been granted immunity from prosecution by the Hong Kong Government
in return for his testimony against the applicant.
B. The relevant domestic law
The law relating to the extradition of Commonwealth citizens
accused of criminal offences in another Commonwealth country is
contained in the Fugitive Offenders Act 1967 (the 1967 Act). Sections
6 and 7 of that Act provide an informal, emergency procedure for
taking someone into custody by the issue of a provisional arrest
warrant issued by a Magistrate after sworn evidence has been put
before him of a sort that would have been sufficient to justify arrest
if the offence had been committed in the United Kingdom. Formal
extradition proceedings, however, cannot proceed thereafter unless an
authority to proceed is issued by the Home Secretary. Without such an
authority, the alleged offender must be released. The 1967 Act
respects the rule of specialty and only authorises extradition if the
act or omission constituting the offence charged would also constitute
an offence under the criminal law of the United Kingdom (sections
3(1)(c) and 7(5)). An added safeguard for the alleged offender under
section 7(5) is the requirement that the requesting State make out a
prima facie case against the individual, and provide evidence which
would be sufficient to warrant his trial for the offence in question
if it had been committed within the jurisdiction of the court.
Section 7 of the 1967 Act also imposes reasonable time requirements to
avoid delays in processing the extradition request and in surrendering
the fugitive. Section 8 protects the fugitive from extradition before
an opportunity has been given to appeal against extradition to the
High Court on an application for judicial review or habeas corpus,
which applications have suspensive effect. Bail may be granted in the
first instance by the Magistrates' Court dealing with the extradition
committal proceedings or subsequently by the High Court dealing with
the appeals.
The fugitive is not entitled to make unlimited habeas corpus
applications. The common law obliges an applicant to put forward on
the first application the whole of the case that is fairly available
to him. He is prevented from applying to the court on the same
grounds in a second application, unless he adduces fresh evidence.
Applications made in contravention of these rules will normally be
rejected as an abuse of the process of the court within the meaning of
section 14 (2) of the Administration of Justice Act 1960.
COMPLAINTS
The applicant complained in his original application that his
protracted detention in the United Kingdom pending extradition and the
refusal of bail was in breach of Article 5 para. 3 of the Convention.
He also complained that if he is returned to Hong Kong his trial there
will be unfair, aggravated inter alia, by contested evidence taken in
his absence in Malaysia, the immunity from prosecution offered to a
co-accused who will testify against him and the likely non-appearance
of certain key witnesses, in breach of Article 6 para. 3 (d) of the
Convention. In subsequent submissions the applicant complained that
his arrest and detention were not prescribed by law and that the
subsequent proceedings have not been conducted with due diligence in
breach of Article 5 para. 1 (f) of the Convention. Reference has also
been made by the applicant to Article 5 paras. 2 and 4 of the
Convention in respect of an alleged failure to provide him with full
information about the criminal proceedings against him in Hong Kong
and an alleged inability, as a result, to test the lawfulness of his
detention in the United Kingdom effectively. Further references were
made by the applicant to Article 5 para. 1 (a) and (c) and Article 8
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 19 December 1989 and
registered on 21 December 1989. On 6 February 1990 the President of
the Commission granted the applicant's request that the application be
given precedence under Rule 27 of the Rules of Procedure.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on
12 March 1990. It decided to give notice of the application to the
respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of
Procedure (former version), and to invite the parties to submit their
written observations on the admissibility and merits of the case
insofar as it raised an issue under Article 5 para. 1 (f) of the
Convention. The Government submitted their observations, after an
extension of the time limit, on 20 June 1990, to which the applicant
replied on 10 July 1990. Prior to that he submitted further argument
in support of his application on 25 May 1990. Further comment was
submitted by the Government on 7 September 1990, to which the
applicant replied on 28 September 1990.
On 5 October 1990 the Commission decided, in accordance with
Rule 50 (b) of the Rules of Procedure, to obtain the parties' oral
submissions on certain of the issues raised by the case. Written
briefs were submitted by the parties prior to the hearing, which was
held on 14 January 1991. The Government were represented by Mr. M.
Wood, Agent, Foreign and Commonwealth Office, Mr. M. Baker, QC, and
Ms. C. Montgomery, counsel, and Miss P.A. Edwards and Mr. G.
Underwood, advisers from the Home Office. The applicant was
represented by Mr. J.P. Gardner, Solicitor, Mr. J. Connolly, barrister
at law, and Miss S. Huang, adviser.
THE LAW
1. The principal issue in the present application arises from the
applicant's complaint that his prolonged detention in the United
Kingdom pending his extradition to Hong Kong is contrary to Article 5
(Art. 5) of the Convention and, in particular, Article 5 para. 1 (f)
(Art. 5-1-f), as the extradition and habeas corpus proceedings to
which he has been a party, have allegedly not been conducted with the
necessary diligence.
The relevant part of Article 5 para. 1 (f) (Art. 5-1-f) of the
Convention provides as follows :
"Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law :
...
(f) the lawful arrest or detention of a person
to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken
with a view to deportation or extradition."
The applicant submitted, inter alia, that the proceedings in
the United Kingdom have been tainted with illegality from the outset
in view of the invalidity of the original Hong Kong warrant issued on
30 November 1985 and quashed by the Hong Kong Court of Appeal on 4 May
1989. He claimed, thereby, that his ensuing detention in the United
Kingdom has been unlawful. The Government contended that the
applicant's detention in the United Kingdom was not dependent upon the
lawfulness of the first Hong Kong warrant, but upon the lawfulness of
the provisional warrant issued by the London Magistrate on 2 December
1985 and the lawfulness of the subsequent extradition and habeas
corpus proceedings under English law. They point out that a further
valid Hong Kong warrant was issued before the Secretary of State
issued his authority to the London Magistrate to proceed with the
extradition committal.
The Commission accepts the Government's contentions. It 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 second sentence (Art. 5-1),
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.
The applicant also submitted that the proceedings in his case
have taken an inordinate length of time. He is the longest remand
prisoner in the United Kingdom as a result. He referred to the
Commission's decision in the case of Lynas v. Switzerland (No.
7317/75, Dec. 6.10.76, D.R. 6 p. 141) in which it held as follows :
"Article 5 (1) (f) (Art. 5-1-f) clearly permits the
Commission to decide on the lawfulness ('lawful
detention/détention régulière') of a person against whom
action is being taken with a view to extradition (une
procédure d'extradition est en cours).
The wording of both the French and English texts makes it
clear that only the existence of extradition proceedings
justifies deprivation of liberty in such a case. It
follows that if for example the proceedings are not
conducted with the requisite diligence or if the detention
results from some misuse of authority it ceases to be
justifiable under Article 5 (1) (f) (Art. 5-1-f). Within
these limits the Commission might therefore have cause to
consider the length of time spent in detention pending
extradition from the point of view of the above cited
provision."
The applicant contended that the responsibility for the
organisation of the procedures and their progression at a reasonable
pace lay with the Government. He stated that he had not assisted the
authorities in this, but nor had he obstructed them.
The Government recognised that the applicant's case had taken
an exceptionally long time, unprecedented in the United Kingdom.
However, they contended that it was the applicant who had been
responsible for the continuous proceedings since committal which have
led to such exceptional delays. It was he who initiated the four
habeas corpus proceedings which have all been conspicuously
unsuccessful. At no stage have the competent authorities shown a lack
of diligence. On the contrary, they have continuously expressed their
concern at the delays involved. Whilst the applicant was entitled to
take up every possible legal argument available to him, he cannot then
complain of the consequential passage of time while these were dealt
with by the domestic courts. They pointed out that the applicant made
no request to the domestic courts for expedited hearings, as he could
have done.
The Commission notes that the length of the applicant's
detention and his extradition and habeas corpus proceedings have been
exceptionally long. However, these proceedings do not fall within the
ambit of Article 6 para. 1 (Art. 6-1) of the Convention as proceedings
determining a criminal charge, which determination must be made within
a reasonable time.
Article 5 para. 1 (f) (Art. 5-1-f) of the Convention does not
contain specific time requirements. Whether the length of extradition
and ancillary proceedings could affect the lawfulness of detention
under this provision must therefore depend upon an examination of the
circumstances of the particular case. This examination in the
applicant's case must take account of the fact that several States
were involved in the proceedings and that delays were created by this
factor over which the United Kingdom had no control. In the present
case two other Governments were directly involved, the Hong Kong and
Liberian Government, and one peripherally, the Malaysian Government.
Furthermore the fact that the Hong Kong Government had to provide
evidence of a prima facie case against the applicant no doubt added to
its complexity, whilst at the same time providing an extra safeguard
for the applicant. The Commission has also taken account of the
voluminous documentation put before the English courts at each step in
the procedure and the detail of the parties' submissions which
necessitated many days of oral argument. The Commission is
particularly struck by certain of the applicant's arguments raised in
the habeas corpus proceedings which could have been made at the
outset, such as his claim for Liberian diplomatic immunity. It is
further struck by the fact that the applicant at no stage requested
the expeditious determination of any of these proceedings, as he could
have done. On the contrary, the applicant seems to have done
everything he could to draw out the proceedings in his avowed
determination to avoid extradition to Hong Kong. Although the
applicant's case has taken an extraordinarily long time and his
detention has been exceptionally long, the Commission considers that,
if the applicant insists on pursuing any avenue of litigation he can
find, he cannot complain to the Commission of the passage of time
resulting from such proceedings, especially if they are held to be an
abuse of the process of the domestic courts, as the Divisional Court
held in the applicant's last, fourth habeas corpus application. In
this context the applicant's press declarations are revealing : He
has stated that he could carry on with these proceedings for ever,
even if it means staying in prison for 50 years, rather than go back
to Hong Kong for trial.
The Commission finds, in the exceptional circumstances of the
present case, that the proceedings, whether taken as a whole, or taken
separately at each stage (the committal and each of the four habeas
corpus applications), do not disclose any lack of due diligence on the
part of the domestic authorities which could have rendered the
applicant's continued detention pending extradition in breach of
Article 5 para. 1 (Art. 5-1) of the Convention.
It follows that this part of the application must be rejected
as being manifestly ill-founded, within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
2. The applicant next complained that his continued detention and
the refusal of bail was in breach of Article 5 para. 3 (Art. 5-3) of
the Convention. This provides, inter alia, that everyone arrested
under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention on
reasonable suspicion of having committed a criminal offence for the
purpose of being charged, or preventing the commission of further
offences or escape, shall be entitled to a trial within a reasonable
time or release on bail. The Government contended that the
applicant's detention was not based on Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention, but on the aforementioned Article 5
para. 1 (f) (Art. 5-1-f). Article 5 para. 3 (Art. 5-3), therefore,
had no application to the applicant's detention pending extradition.
The Commission agrees with the Government's contention.
Nevertheless, given the primordial importance of the right to liberty
ensured by Article 5 para. 1 (Art. 5-1) of the Convention, the
Commission may examine whether the refusal of bail to an individual,
even if his detention falls within Article 5 para. 1 (f) (Art. 5-1-f)
of the Convention, could be said to be unreasonable or arbitrary, thus
affecting the general notion of lawfulness, which is a common thread
throughout the provisions of Article 5 para. 1 (Art. 5-1) of the
Convention.
An examination of the facts of the present case reveals no
such arbitrariness. It is clear that the applicant is a wealthy
person who has declared that he will never return to Hong Kong for
trial if he can avoid it. On arrest he was in possession of a
Portuguese passport and false identity card. In these exceptional
circumstances the authorities' fear that the applicant might abscond
cannot be considered unreasonable. The Commission finds that this
aspect of the case discloses no appearance of a violation of Article 5
para. 1 (f) (Art. 5-1-f) of the Convention and must be rejected as
being manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2).
3. The applicant also complained that if he is returned to Hong
Kong he will receive an unfair trial, particularly in respect of
possible untested evidence which he alleges would be used against him
contrary to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention. The
Government reject the applicant's contentions and maintain that they
would have no liability under the Convention for the acts of the Hong
Kong Government.
The relevant parts of Article 6 (Art. 6) of the Convention
provide as follows :
"1. In the determination ... of any criminal charge
against him, everyone is entitled to a fair and public
hearing ...
3. Everyone charged with a criminal offence has the
following minimum rights :
...
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses
against him ..."
The Commission notes that in principle the United Kingdom
Government would not incur any liability under the Convention for the
acts of the Hong Kong Government. As the European Court of Human
Rights held in its Soering judgment, Article 1 (Art. 1) of the Convention
cannot be read as justifying a general principle to the effect that a
Contracting State may not surrender an individual unless satisfied
that the conditions awaiting him in the country of destination are in
full accord with each of the safeguards of the Convention. However,
exceptionally, if a Contracting State decided to extradite a fugitive
to a country where substantial grounds have been shown for believing
that the individual faces a real risk of being subjected to treatment
contrary to Article 3 (Art. 3) of the Convention, that decision itself
may raise an issue under Article 3 (Art. 3). The Court also left open
the possibility that, exceptionally, an issue might arise under
Article 6 (Art. 6) of the Convention "by an extradition decision in
circumstances where the fugitive has suffered or risks suffering a
flagrant denial of a fair trial in the requesting country" (Eur.
Court H.R., Soering judgment of 7 July 1989, Series A no. 161, paras.
81-91 and paras. 112-113).
In the present case, even assuming that the responsibility of
the United Kingdom could be incurred in respect of the applicant's
claim under Article 6 (Art. 6), the Commission finds that the facts of
the application do not disclose a risk that the applicant will suffer
a flagrant denial of a fair trial in Hong Kong. Accordingly, this
aspect of the case must also be rejected as being manifestly
ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.
4. Finally, the Commission has considered the applicant's
references to Article 5 paras. 2 (Art. 5-2) and 4 (Art. 5-4) and
Article 8 (Art. 8) of the Convention. The applicant has alleged that
he has not received sufficient, prompt information about the charges
against him in Hong Kong, as required by Article 5 para. 2 (Art. 5-2)
of the Convention, thus inhibiting the effective exercise of his
rights under Article 5 para. 4 (Art. 5-4) to test the lawfulness of
his detention in the United Kingdom. He raised Article 8 (Art. 8) of
the Convention in respect of the search of his home conducted by the
police on his arrest in December 1985.
However, the Commission finds no evidence in the case-file to
substantiate the applicant's claims that he has not been adequately
informed of the charges against him in Hong Kong or that he has
thereby been unable effectively to pursue his challenges to the
lawfulness of his detention through the habeas corpus proceedings.
Moreover the application discloses no indication that the search of
the applicant's home was not a justified interference with his right
to respect for the home for the prevention of crime. It follows that
these aspects of the case must similarly be rejected as being
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.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy