Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15199/89

by Nazir CHINOY

against the United Kingdom

The European Commission of Human Rights sitting in private

on 4 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

F. ERMACORA

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÜGER, 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 26 June 1989

by Nazir CHINOY against the United Kingdom and registered on

6 July 1989 under file No. 15199/89;

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

Rules of Procedure of the Commission;

Having regard to:

- the Commission's decision of 14 January 1991 to bring the

application to the notice of the respondent Government and

to invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government

on 17 May 1991 and the applicant's observations in reply

submitted on 25 June 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Pakistan, born in 1933. He is a

bank employee. He is represented by Mr. Clive Nicholls QC, Mr. R. A.

Jones QC and Mr. J. P. Gardner, instructed by Reynolds Dawson,

solicitors.

The facts of the case may be summarised as follows :

On 4 October 1988 the applicant was indicted by a federal

grand jury in Tampa, Florida (United States of America) with charges

relating to conspiring to possess cocaine with intent to distribute,

conspiring to launder drugs money and knowingly laundering drugs

money. By Diplomatic Note No. 83 of 7 October 1988, the Government

of the United States of America requested the applicant's extradition

under the terms of the Extradition Treaty between the United States

and the United Kingdom of 1972, incorporated in the United States of

America (Extradition) Order 1976 S.I. 1976 No. 2144. The note gave

details of the charges against the applicant and requested his

provisional arrest for the purposes of extradition. On 8 October 1988

a stipendiary magistrate at Bow Street Magistrates Court issued a

provisional warrant for the applicant's arrest under the provisions of

Section 8 of the Extradition Act 1870.

On 11 October 1988 the applicant, having arrived in London on

8 October 1988 from his place of work and residence in Paris, was

informed that a warrant for his arrest existed. The next day he

surrendered himself and was remanded in custody.

On 12 December 1988 the Secretary of State for the Home

Department issued an order to proceed under Section 7 of the

Extradition Act 1870, signifying that a requisition had been made to

him and commanding a magistrate at Bow Street to proceed under the

Extradition Acts 1870-1935. Committal proceedings opened on 4 April

1989 before a stipendiary magistrate. The evidence adduced by the

Government of the United States included affidavits made by a senior

special agent of the United States Customs Service (Enforcement

Division), and transcripts of conversations involving the applicant

and others. The conversations had been recorded in France on 20 and 24

May 1988 and 23, 25 and 26 September 1988 by the special agent without

the knowledge of the applicant. The conversation of 25 September 1988

involved the applicant's wife and children. The parts involving those

members of his family take up eleven of the thirty-seven pages of the

transcript. The Government submit, and the applicant does not

contest, that the tape involving the members of his family was not

played in court. It is not known whether it was referred to

expressly. The Government emphasise that "it would only have been

referred to if one of the parties had considered it to be relevant to

the issues in the case, which it was not".

At the outset of proceedings counsel on behalf of the

applicant asked the Government of the United States to state what, if

any, authority their agents or their superiors had to conduct a

criminal investigation on French territory and, more particularly, to

record the conversations in France disclosed in the evidence.

Counsel on behalf of the Government of the United States declined to

answer the question.

The applicant adduced expert evidence from Professor Soyer of

the University of the Sorbonne, Professor Pradel of the University of

Poitiers and Mr. E. Brochier, a partner in the law firm of

Darrois-Villey, to the effect that the investigation was carried out

without the knowledge of the French authorities, in breach of French

sovereignty and without resort to the accepted procedures governing

mutual assistance between the respective governments. The expert

evidence also concluded that the recording of the conversations, both

at meetings and on the telephone, constituted offences contrary to

Article 368 of the French Criminal Code and that the dissemination of

the recordings was contrary to Article 369 of that Code. In connection

with the alleged illegality of the recordings, the applicant

lodged a complaint constituting himself as a civil party claiming

damages before the Tribunal de Grande Instance in Paris. The

proceedings resulted in a "non-lieu" after the refusal of the United

States authorities to reply to a commission rogatory.

In the course of the proceedings before the Commission the

Government submitted evidence which had been used in the United States

proceedings against the applicant's colleagues. That evidence, comprising

a report by Mr. J. Boré and Mr. C. Xavier, lawyers at the French

Conseil d'Etat and the Court of Cassation, concluded that Article 368

of the Criminal Code did not apply to business life, or to the commission

of offences. Moreover, the report went on, even if the method of

taking the evidence (the tape recording) was illegal, the evidence

would not, of itself, be unusable: the judge would have to decide in

each case. The report also considered the position under the Convention.

The magistrate at Bow Street considered, inter alia, Section

78 (1) of the Police and Criminal Evidence Act 1984 which provides as

follows:

"In any proceedings the court may refuse to allow evidence

on which the prosecution proposes to rely to be given if it

appears to the court that, having regard to all the

circumstances, including the circumstances in which the

evidence was obtained, the admission of the evidence would

have such an adverse effect on the fairness of the

proceedings that the court ought not to admit it."

He found:

"I am not concerned with breaches of French law or

sovereignty however crucial to a French court in receiving

this evidence. I say in these difficulties and dangers

facing investigators in uncovering such offences, the

methods used were in my view legitimate in International

Law. They were not agents provocateurs because it can

properly be inferred that the conspiracy was well underway at

the time of obtaining the confessions. I am satisfied that

I should not exercise my discretion to exclude that evidence

accordingly."

The magistrate also considered whether the conspiracies

constituted extraditable offences and found that (save in respect of

one charge relating to actual drug trafficking) all charges were

extraditable. On 4 May 1989 an order was made under Section 10 of the

Extradition Act 1870 that the applicant be committed to prison to

await a warrant of a Secretary of state for his surrender.

On 2 February 1990, the Divisional Court granted bail to the

applicant.

On 9 August 1990 Lord Justice Farquharson and Mr. Justice

Nolan, sitting as a Divisional Court of the High Court of Justice,

considered the applicant's habeas corpus application by way of appeal

against the committal order. Mr. Justice Nolan, giving the judgment

of the Divisional Court, stated:

"... If (subject to section 78 of the Police and Criminal

Evidence Act) evidence unlawfully obtained in England is

admissible, as Sang [(1980) A.C. 403] declares, then why

should a different rule apply with regard to evidence

obtained unlawfully in another country? As I see it, the

governing principle which applies no matter wherever and

however the evidence has been obtained is that stated by

Lord Diplock in Sang at page 437 where he said:

'However much the judge may dislike the way in

which a particular piece of evidence was obtained

before proceedings were commenced, if it is admissible

evidence probative of the accused's guilt it is no

part of his judicial function to exclude it for this

reason.'

...It has always been the law that prosecution evidence may

be excluded for other reasons... Another reason, to which I

now turn, is that introduced into our law by the enactment

of Section 78 of the Police and Criminal Evidence Act 1984.

It has been common ground before us that Section 78 applies

to extradition proceedings no less than to domestic

proceedings. There follows the question how far it affects

the law as laid down in Sang...

...

So, too, in the present case should any breaches of French

law and of the European Convention on Human Rights. All of

these form part of the circumstances in which the evidence

was obtained. For these reasons, it becomes necessary to

consider whether the magistrate was correct in ruling, as he

did, that the evidence should be admitted.

...

I would not, for my part, agree that the admitted breaches*

of French criminal law were irrelevant. As I have said,

they formed part of the circumstances in which the evidence

was obtained. I would, however, for reasons already

indicated, regard the magistrate as being fully entitled to

take the view that, in all the circumstances of the case,

these breaches could carry no more weight than breaches of

English law and therefore did not constitute a sufficient

reason for excluding the evidence.

_____

* The Government submit that the breaches were not admitted, but that

they were not contested and, in the absence of contrary evidence,

the Divisional Court assumed that they had taken place.

On substantially the same grounds, I consider that the

magistrate was fully entitled to reach his second and rather

broader conclusion that in view of the difficulties and

dangers facing investigators in uncovering offences of the

kind with which the applicant is charged, the methods used

were legitimate. I do not think that it really matters

whether the magistrate described them as being legitimate

according to English law or to International Law. It is

sufficient if they were legitimate by reference to English

law. Our law has always acknowledged the fact, unpalatable

as it may be, that the detection and proof of certain types

of criminal activity may necessitate the employment of

underhand and even unlawful means. In the present case the

respondent Government and its agents have committed no

breach of English law, and I can find no fault with the

magistrate's decision, in the context of Section 78, that

the means employed by Mr. Mazur and his colleagues were

appropriate to the situation which they were investigating,

and did not require the exclusion of the evidence obtained."

_______

On 3 December 1990 the House of Lords refused leave to appeal

to that House.

Bail was extended on 10 December 1990. In the course of the

proceedings counsel for the United States of America stated that the

French Customs and Excise had consented to the activities of the

American agents.

On 21 January 1991 the Order for surrender was issued. Leave

to apply for judicial review of the order was granted on 23 January,

but that leave was set aside by the Divisional Court on 10 April

1991. The applicant was surrendered to the US authorities on

20 April 1991.

COMPLAINTS

The applicant complains that his right to respect for his

private life, home, family and correspondence has been interfered with

contrary to Article 8 of the Convention. That interference consisted

in the use made, by authorities and courts of the United Kingdom, of

clandestine and flagrantly unlawful tape recordings of conversations

on the telephone and in person with himself and members of his

immediate family. The applicant specifically refers to the existence

of an interference at every stage of the United Kingdom's involvement

with the tapes, that is, from the existence of machinery for the

receipt of the tapes by the authorities, the actual receipt and

subsequent internal use of the tapes in processing and assessing the

case, to the reliance on and use of the tapes in processing and

assessing the case, to the reliance on and use of the tapes in the

extradition proceedings. He also complains that he has no remedy

before a national authority in respect of this complaint, contrary to

Article 13.

The applicant also, by way of complaints raised for the first

time in correspondence on 9 November 1990, alleges a violation of

Article 5 of the Convention. He submits inter alia that the

requirements of Article 5 exclude the possibility of detention

continuing on the basis of evidence which, although not unlawful in

domestic terms, is considered unlawful under the domestic law of a third

Contracting State, which may have been obtained in violation of that

State's sovereignty, which is considered to be in violation of the

Convention and which is the sole evidence justifying that detention.

He also alleges a violation of Article 5 para. 4 of the

Convention, contending that the scope of the proceedings was too

limited.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 June 1989 and registered

on 6 July 1989.

On 14 January 1991 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on its admissibility and merits.

Pursuant to a request by the respondent Government, on 27 March 1991

the President agreed to an extension of the time limit for submission

of the respondent Government's observations to 27 May 1991. Following

requests from the applicant in correspondence of 12, 15, 16, 18 and

19 April 1991, the Commission decided on 19 April 1991 not to indicate

to the respondent Govenment that the applicant should remain in the

United Kingdom until such time as the Commission should determine, but

to request the Government to use their best endeavours to submit their

observations in the case by 20 May 1991.

The Government submitted their observations on 17 May 1991 and

the applicant's observations in reply were submitted on 25 June 1991.

THE LAW

1. The applicant alleges a violation of Article 8 (Art. 8) of the

Convention which provides as follows:

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

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others."

The Commission notes that the weight of the applicant's

complaints rests on the "flagrant illegality", under French law

and under the Convention, of the making of the tape recordings of

conversations with him and, in one case, him and members of his

family.

The Commission recalls that there is conflicting evidence

as to the unlawfulness under French law of recording business, and

possibly criminal, conversations. The domestic authorities

in the United Kingdom (in particular the Divisional Court on 9 August

1990) assumed that unlawfulness of the tape recordings was admitted, no

evidence to the contrary having been adduced. It is not for the

Commission to determine which of the views as to French law put

forward is correct. Nor is it for the Commission to determine in this

case whether the recording of the conversations involved a violation

of the Convention by France. It has not been established whether the

French authorities were or were not aware, and if so to what extent,

of the activities of the United States agents, nor have the French

courts had the opportunity to consider the matter. Furthermore, the

present application has been brought against the United Kingdom.

Accordingly, the Commission will deal with this application not in the

context of clearly established (or admitted) unlawfulness of the

recording under the Convention or under French law, but on the

assumption that doubt persists as to such lawfulness.

The Government consider that the applicant's real concern in

the present application is not any interference which may have taken

place with his private or family life, but the fact that he was

detained for the purposes of being extradited. Accordingly, they

consider that Article 5 (Art. 5) in fact is the most appropriate Article to

deal with the applicant's complaints. In the alternative, they

consider that the very limited use of the recordings was "in

accordance with the law" in the sense that it accorded with domestic

law and that it did not amount to an arbitrary interference by the

United Kingdom authorities with the applicant's private and family

life. As to whether any interference was "necessary in a democratic

society", the Government refer to the manifest harm caused by the

trade in South American drugs and the difficulties and dangers faced

by those who investigate and prosecute the criminals involved in such

trade. Moreover, the Government have treaty obligations to extradite

certain categories of persons.

The Commission must consider what use was made of the tape

recordings, and how that use affected the applicant and his rights

under Article 8 (Art. 6) of the Convention.

The Commission notes, first of all, that the recordings at

issue were not made by or with the consent of the United Kingdom

authorities. At most the present application covers the use of the

recordings in the context of the extradition proceedings against the

applicant. In this context, the sole recording which concerned the

applicant's family, that is, the relevant part of the tape of the

conversation of 25 September 1988, was not, in fact, played in any

courts in the United Kingdom. Moreover, although the transcript of

that tape was available to the courts, it has not been submitted that the

transcript was read out or otherwise available to the public during

the proceedings.

Accordingly, the "use" made by the United Kingdom authorities

of all the tapes and transcripts was limited to receipt of the

materials from the United States authorities, examination of the

material as to its relevance in the extradition proceedings, and

production of the relevant parts as evidence in these proceedings.

The Commission recalls that in the case of Schenk (Eur. Court

H.R., judgment of 2 July 1988, Series A no. 140 p. 29, para. 46) the

European Court of Human Rights found that it could not be excluded "as

a matter of principle and in the abstract that unlawfully obtained

evidence ... may be admissible". That was in the context of Article 6

(Art. 6) of the Convention, and the Court there found no violation of

that provision. As to Article 8 (Art. 8), the Court found that

"...nothing would prevent the Court from considering the question of

the use made of the recording. However, this is not necessary in the

instant case, as the issue is subsumed under the question (already

dealt with from the point of view of Article 6 (Art. 6)) of the use

made of the cassette during the judicial investigation and the trial."

(Eur. Court H.R., judgment of 2 July 1988, Series A no. 140, p. 31,

para. 53).

The complaints in the present case are of the retention and

use by the United Kingdom authorities of tapes and transcripts made,

without the knowledge of the United Kingdom authorities, perhaps

unlawfully, in France. The material formed a vital part in the

proceedings concerning the applicant's extradition to the United States

of America. The transcripts and tapes which were used in open court

related solely to business matters.

The Commission recalls that the purpose of Article 8 (Art. 8)

of the Convention is to secure to everyone, "the right to respect for

... private and family life, ... home and ... correspondence". The

Commission finds that it is unnecessary to determine in this case

whether the production in judicial proceedings of material relating to

private and family life, home and correspondence, and to the outcome

of these proceedings, can, in principle, constitute an interference

with the right defined in Article 8 para. 1 (Art. 8-1). The purpose

of the extradition proceedings in which the United Kingdom authorities

were involved was to further the international campaign against the

drugs trade and the laundering of the proceeds of drug trafficking,

and those proceedings were pursuant to the United Kingdom's

international treaty obligations (in this case to the United States of

America). Moreover, while the unlawfulness alleged in respect of the

recordings in the present case is, at least, in some doubt, the

domestic courts clearly considered the evidence of the tapes and

transcripts to be relevant. In these circumstances, the Commission

finds that the use made by the United Kingdom authorities in the

present case of the recordings of the applicant's conversations does

not disclose any lack of respect for his private and family life, his

home or his correspondence.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicant also alleges a violation of Article 5 para. 1

(Art. 5-1) of the Convention. He considers that the unlawfulness of

the tape recordings so taints the lawfulness of detention that the

detention itself was rendered unlawful within the meaning of Article 5

para. 1 (Art. 5-1) of the Convention.

Article 5 para. 1 (Art. 5-1) of the Convention provides, so

far as relevant, 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

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 Government submit that the use of the recordings, even if

it involved unlawfulness under French law and/or the Convention, was

in no way arbitrary, especially bearing in mind that the Convention

contains no express or implied requirement that evidence obtained

unlawfully under domestic law must be ruled inadmissible.

In order to be justified under Article 5 para. 1 (Art. 5-1),

the detention of the applicant must comply with one of the -

exhaustively enumerated - conditions set out in Article 5 para. 1

(Art. 5-1). Only Article 5 para. 1 (f) (Art. 5-1-f) is at issue in

the present case.

The Commission recalls that the existence of extradition or

deportation proceedings is the sole justification for detention under

Article 5 para. 1 (f) (Art. 5-1-f) (cf. No. 8081/77, Dec. 12.12.77,

D.R. 12 p. 207, 209 with further references). The applicant was

initially detained from his arrest on 12 October 1988 until 2 February

1990, when he was released on bail by the Divisional Court. He was

again detained in custody before being surrendered to the United

States authorities on 20 April 1991. The applicant's original

detention, from 12 October 1988, was made pursuant to a provisional

warrant issued by a magistrate on 8 October 1988. This warrant was

granted pursuant to a request by the United States authorities by way

of diplomatic note of 7 October 1988 and does not refer to the

contested recordings at all. Accordingly, this initial detention was

clearly justified under Article 5 para. 1 (f) (Art. 5-1-f) of the

Convention.

The order to proceed of 12 December 1988, on the other hand,

was based on a consideration of the contested recordings. The

question therefore arises as to what extent the alleged unlawfulness

of evidence falls to be considered under Article 5 para. 1 (f)

(Art. 5-1-f) of the Convention. The European Court of Human Rights

has held, in the context of Article 5 para. 1 (e) (Art. 5-1-e) of the

Convention :

"On the question whether the detention is "lawful" including

whether it complies with "a procedure prescribed by law",

the Convention refers back essentially to national law and

lays down the obligation to conform to the substantive and

procedural rules thereof. However, it requires in addition

that any deprivation of liberty should be consistent with

the purpose of Article 5 (Art. 5), namely to protect individuals from

arbitrariness." (Wassink judgment of 27 September

1990, Series A no. 185-A, p.11, para. 24)

There is no indication in the present case that the procedural

or substantive rules of domestic law were infringed. Moreover, although

the domestic courts appear, in the absence of evidence to the contrary,

to have accepted as admitted that the recording of the evidence was in

fact in violation of French law and/or of the Convention, the Commission

has already found that this cannot be accepted as the final conclusion,

either as to French law or as to the Convention. Moreover, the domestic

courts considered that breaches of French law and/or the Convention

"could carry no more weight than breaches of English law".

The Commission finds no indication of arbitrariness in the

decision of the United Kingdom courts to admit evidence which may have

been obtained, and appears to have been accepted by the domestic courts

as having been obtained, in breach of French law and/or the Convention.

It follows that at all relevant times the applicant's

detention was covered by Article 5 para. 1 (f) (Art. 5-1-f) of the

Convention and this part of the application is therefore manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

3. The applicant alleges a violation of Article 13 (Art. 13) of

the Convention in connection with Article 8 (Art. 8). However, the

guarantees of Article 13 (Art. 13) apply only to a grievance which can

be regarded as "arguable" (cf. Eur. Court H.R., Powell and Rayner

judgment of 21 February 1990, Series A no. 172, p. 14, para. 31, with

further references). In the present case, the Commission has declared

the substantive claims under Article 8 (Art. 8) manifestly

ill-founded. For similar reasons, it cannot be regarded as

"arguable".

It follows that this part of the application is manifestly

ill-founded and must be rejected in accordance with Article 27 para. 2

(Art. 27-2) of the Convention.

4. Finally, the applicant alleges a violation of Article 5 para.

4 (Art. 5-4) of the Convention. This provision 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."

The applicant submits that the United Kingdom courts are

unable to consider the compliance of the extradition proceedings with

the Rule of Law within the meaning of this provision.

The Commission notes that the stipendiary magistrate and the

Divisional Court took extensive evidence from the applicant. The

Divisional Court, inter alia, assumed in the applicant's favour that

it was possible to stay extradition proceedings for abuse of process

of the court, and also accepted that Section 78 (1) of the Police and

Criminal Evidence Act 1980 gave discretion to the magistrate to exclude

evidence if its prejudicial effect outweighed its probative value.

Accordingly, the applicant has not substantiated in what way

the scope of the remedy open to him could be said to be wanting.

It follows that this part of the application is 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 Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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CHINOY v. THE UNITED KINGDOM

CHINOY v. THE UNITED KINGDOM

LEXI