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)