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AS TO THE ADMISSIBILITY OF

Application No. 24110/94

by F.T.

against the United Kingdom

The European Commission of Human Rights sitting in private on

18 October 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 February 1994

by F.T. against the United Kingdom and registered on 9 May 1994 under

file No. 24110/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as

follows.

The applicant is a British citizen, born in November 1909 and is

resident in the United Kingdom. He is represented before the Commission

by Messrs. Colin Nott and Piers Gardner, solicitors and Mr. Colin

Nicholls, a barrister practising in London.

A. Particular circumstances of the case

On 9 June 1993 the applicant was arrested on foot of a

provisional warrant issued in the United Kingdom following a request

for his extradition made by the Government of the United States. The

warrant was issued pursuant to the Extradition Act 1989 (the 1989 Act")

on the basis of information laid before Bow Street Magistrates' Court

("the Magistrates' Court"). The applicant appeared the same day before

the Magistrates' Court and was bailed pending a full hearing of the

extradition request. Since then he has been living at his home with his

wife.

Both a supporting affidavit sworn on behalf of the Government of

the United States and a charge sheet completed at the Magistrates'

Court referred to the applicant being 5 years younger than the age on

his birth certificate. The reason for this error was that, many years

previously, the applicant misrepresented his age in order to

participate in the Royal Navy Reserve and subsequently the applicant

retained this younger age for all practical purposes.

By orders of the 11 August and 13 September 1993, made pursuant

to section 5(4) of the 1989 Act, the Secretary of State of the United

Kingdom confirmed that a requisition had been received from the United

States in respect of the applicant. The orders referred to the

applicant obtaining property by deception, procuring the execution of

a valuable security by deception, forgery, using a false instrument and

false accounting which offenses are alleged to have occurred between

1976 and 1986 in the United States. These offenses carry, under the

laws of the United States, a maximum cumulative penalty of 30 years.

From 9 June 1993 to 2 February 1994 various documents were

served, by the Government of the United Kingdom, on the applicant.

Since then the applicant has received, in addition, approximately 3000

pages of documentation. Further documentation has yet to be served on

the applicant and, to date, neither the information supplied to the

Government of the United Kingdom (by the Government of the United

States with the request for extradition) nor that supplied to the

Magistrates' Court (by the Government of the United Kingdom) has been

made available to the applicant.

On 23 October 1993 and on 8 February 1994 the applicant attended

a specialist in occupational health, for the purposes of obtaining a

medical report for use in relation to the extradition proceedings. This

report, dated 14 February 1994, confirmed, inter alia, the following

health problems:

- Heart disease, angina and mild congestive cardiac failure.

- Medically obese (108.5 Kgs).

- Chronic nocturia and chronic mild prostatism.

- Chronic bronchitis requiring antibiotics two or three times a

year. His lung volume and flow rates were substantially below

average.

- High blood pressure.

- Maturity onset diabetes.

- Recent treatment for malignant lesions on his face and chest.

- Some mental deterioration due to age.

The medical report also noted that the applicant is an old man,

likely to die at any time and that congestive cardiac failure is one

of the applicant's most significant health problems. The report went

on to point out that the applicant is likely to suffer either a stroke

or sudden heart attack and that the combination of obesity,

hypertension and ischaemic heart disease make such a stroke or heart

attack a likely terminal or pre-terminal event to the applicant's life.

In addition the medical report stated that the applicant's health

had deteriorated in the months between his first and second visit to

this doctor, which deterioration was partly due to the stress of the

ongoing proceedings. Furthermore, according to the medical report, a

realistic appraisal of the applicant's life expectancy would indicate

that the applicant would not live until the eventual outcome of the

proceedings in the United States. (The applicant submits that his life

expectancy is three years. The medical report did not give an estimate

in terms of a number of years.)

In conclusion, the medical report stated that imprisonment would

pose "a serious danger to his physical ... health and probably to his

life" and may result in mental confusion, collapse and disorientation,

the latter scenario reflecting the doctor's experience with elderly

patients in, inter alia, prisons.

On 2 March 1994 the applicant's legal advisors wrote to the

Secretary of State of the United Kingdom bringing the applicant's age

and ill-health to his attention and inviting him to bring the

extradition proceedings to a conclusion. The Secretary of State

responded on 5 May 1994 indicating that, in light of the particular

circumstances of the case, the matters raised by the applicant's legal

advisors would be put to the United States authorities. Having received

no further response, the applicant's legal advisors wrote to the

Secretary of State and the Crown Prosecution Service ("CPS") on 7

September 1994, requesting both authorities to discontinue the

extradition proceedings. The applicant claims that the CPS has the

power to take such action under section 23 of the Prosecution of

Offences Act 1985, or alternatively, that such power vests in the

Secretary of State. The CPS responded on 12 September 1994 pointing out

that the CPS had no power to discontinue the proceedings in these

circumstances. By letter dated 15 September 1994 the Secretary of State

indicated that he was awaiting a further response from the United

States authorities.

In or about early October 1994 the applicant issued proceedings

for leave to apply for judicial review. The applicant is effectively

seeking a declaration that the Secretary of State and/or the Director

of Public Prosecutions have the power to discontinue the proceedings

against him. The applicant is also seeking an order compelling those

authorities to exercise this power and to decide whether the

proceedings should be discontinued in light of the applicant's age and

ill-health. The judicial review proceedings appear to be ongoing.

The full hearing, on the extradition request from the United

States, has yet to take place.

B. Relevant domestic law

The Extradition Act 1989 ("the 1989 Act") is the legislative

framework through which extradition treaty arrangements between the

United Kingdom and the United States are implemented at a domestic

level.

Section 5(4) of the 1989 Act reads as follows:

"The Secretary of State shall signify to the Bow Street

Magistrates Court that a requisition has been received in respect

of the individual whose extradition is requested."

An order made pursuant to section 5(4) of the 1989 Act

constitutes formal confirmation to the Magistrates' Court of the

extradition request without which order the Magistrates' Court would

lose jurisdiction and the proceedings would come to an end.

Section 23(3) of the Prosecution of Offences Act 1985 states that

where, at any time during the preliminary stages of proceedings, the

Director of Public Prosecutions gives notice to the clerk of the court

that he does not want the proceedings to continue, they shall be

discontinued.

COMPLAINTS

The applicant complains under:

1. Article 3 of the Convention that the initiation and maintenance,

by the Government of the United Kingdom, of the extradition proceedings

is inhuman treatment in light of his age and ill-health.

2. Article 3 of the Convention that the anticipated decision by the

courts of the United Kingdom to extradite him to the United States, to

face further proceedings and possibly imprisonment, would constitute

inhuman treatment and punishment in light of his age and ill-health.

3. Article 5 of the Convention that his right to security of person

is denied by reason of the extradition process which exposes him to

treatment contrary to Article 3 of the Convention.

4. Article 8 of the Convention that the extradition process

interferes unlawfully and unnecessarily with his home, family and

private life.

5. Articles 2, 6 and 13 of the Convention.

THE LAW

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

Convention that the initiation and maintenance of the extradition

proceedings, by the Government of the United Kingdom, constitutes

inhuman treatment in view of his age and ill-health. The applicant also

submits, in this regard, that those proceedings show an imbalance

between the rights of the applicant and the general interest of the

community. This imbalance is, according to the applicant, aggravated

by his alleged inability to challenge the ongoing extradition

proceedings (even by judicial review) on grounds of his age and ill-

health which in turn means that the applicant feels he has no control

over those proceedings.

Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission notes, however, from material submitted by the

applicant subsequent to the registration of his application, that it

appears that he has recently made an application for leave to take

judicial review proceedings to seek a declaration that the Secretary

of State and/or the Director of Public Prosecutions has the power to

discontinue the extradition proceedings, the latter pursuant to section

23 of the Prosecution of Offences Act 1985. The applicant also seeks

an order compelling either of those authorities to use their powers to

make a decision as to whether the extradition proceedings should be

discontinued in light of the age and ill-health of the applicant. In

addition the judicial review proceedings appear to be ongoing.

In view of the above, the Commission finds this complaint

premature and inadmissible on grounds of non-exhaustion within the

meaning of Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant further complains under Article 3 (Art. 3) of the

Convention that, in light of his age and ill-health, the anticipated

decision by the courts of the United Kingdom to extradite him to the

United States, where he would face further proceedings and possible

imprisonment, would amount to inhuman treatment and punishment.

The Commission recalls the judgment of the Court in the

Vijayanathan and Pusparajah case (Eur. Court H.R., Vijayanathan and

Pusparajah judgment of 27 August 1992, Series A no. 241, p. 87 para.

46). Both applicants, in that case, had already been directed to leave

French territory, Mr. Pusparajah's application for exceptional leave

to remain had been rejected and therefore all indications, in terms of

the final decision on expulsion, were against the applicants.

Nonetheless the Court, concluded that the applicants were not "victims"

within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention

because the final expulsion order had not, in fact, been made.

In the present case, the Commission notes that no decision to

extradite the applicant has, in fact, been taken by any domestic court.

Indeed the applicant has received no court order, ministerial direction

or even any formal indication of a preliminary nature in favour of his

extradition. Therefore the Commission finds that, as matters stand, the

applicant cannot claim to be a "victim of a violation" within the

meaning of Article 25 para. 1 (Art. 25-1) of the Convention.

Accordingly the Commission concludes that this complaint of the

applicant is incompatible ratione personae with the provisions of the

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

of the Convention.

3. The applicant also complains that his right to security of person

is denied, because of the extradition process which exposes him to

treatment contrary to Article 3 (Art. 3) of the Convention, and he

invokes Article 5 (Art. 5) of the Convention in this regard.

The Commission considers that, in view of the finding (at 1.

above) in relation to Article 3 (Art. 3) of the Convention, this

complaint of the applicant is also inadmissible on grounds of non-

exhaustion pursuant to Article 27 para. 3 (Art. 27-3) of the

Convention.

4. The applicant complains that the extradition process constitutes

an unlawful and unnecessary interference with his home, private and

family life and invokes Article 8 (Art. 8) of the Convention in this

regard.

Article 8 para. 1 (Art. 8-1) of the Convention reads as follows:

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

life, his home and his correspondence."

The Commission considers that the applicant has not substantiated

his complaint under Article 8 (Art. 8) of the Convention. Moreover the

Commission notes that the applicant has not been detained at all, and

has been living at home, since the commencement of the extradition

proceedings. The Commission therefore concludes that the applicant's

complaint in this regard is manifestly ill-founded within the meaning

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

5. The applicant complains under Articles 2, 6 and 13

(Art. 2, 6, 13) of the Convention and in this regard the Commission has

considered all of the facts and issues contained in the present application.

Article 2 (Art. 2) of the Convention

The Commission has considered the complaint of the applicant

under Article 2 (Art. 2) of the Convention in the context of the

applicant's submissions as to the impact on his health of the ongoing

extradition proceedings in the United Kingdom Government.

Article 2 para. 1 (Art. 2-1) of the Convention reads as follows:

"1. Everyone's right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the execution

of a sentence of a court following his conviction of a crime for

which this penalty is provided by law."

However, even assuming that it is possible to examine this

complaint under Article 2 (Art. 2) of the Convention in light of the

above finding in respect of Article 3 (Art. 3) of the Convention, the

Commission finds that the applicant has not demonstrated that it is the

impact of the ongoing proceedings that threatens his life.

Accordingly the Commission concludes that this complaint under

Article 2 (Art. 2) of the Convention is manifestly ill-founded within

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

Article 6 (Art. 6) of the Convention

The Commission has considered the complaint of the applicant

under Article 6 (Art. 6) of the Convention in the context of the

applicant's initial claim that he had no opportunity to raise the issue

of his age and ill-health to challenge the ongoing extradition

proceedings. The Commission has also considered the applicant's

complaint under Article 6 (Art. 6) of the Convention in the context of

his claim that he did not receive, at the time of his arrest nor

subsequently, the information given to the Government of the United

Kingdom (by the Government of the United States grounding the request

for extradition) or the information laid before the Magistrates' Court

(by the Government of the United Kingdom).

The relevant parts of Article 6 (Art. 6) of the Convention read

as follows:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law....

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language he understands

and in detail, of the nature and cause of the accusation

against him;...."

The Commission recalls that Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention are not applicable to proceedings

concerning extradition to a foreign country (No. 15776/89, Dec.5.12.89,

D.R. 64 p. 269). Thus the Commission finds that the complaints of the

applicant, in this regard, are incompatible ratione materiae with the

provisions of the Convention and must be rejected pursuant Article 27

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

Article 13 (Art. 13) of the Convention

The Commission has examined the applicant's complaint under

Article 13 (Art. 13) of the Convention in the context of the

applicant's earlier submissions that he has no domestic remedy, in

respect of the above complaints, because some remedies which are

normally open to those charged with domestic criminal charges, (for

example, nolle prosequi, stay on proceedings which are an abuse of the

process of the court, habeas corpus or judicial review), are not

available or effective in extradition proceedings.

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

As noted by the Commission at 1. above, the applicant has

recently made an application for leave to issue judicial review

proceedings and is pursuing a remedy in the domestic courts which may

be effective. The Commission therefore finds this complaint premature

and accordingly manifestly ill-founded within the meaning of Article

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

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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F.T. v. THE UNITED KINGDOM

F.T. v. THE UNITED KINGDOM

LEXI