Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16137/90

by BUI VAN THANH and Others

against the United Kingdom

The European Commission of Human Rights sitting in private

on 12 March 1990, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 12 January 1990

by Bui Van Thanh and Others against the United Kingdom and registered

on 1 February 1990 under file No. 16137/90;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants in the present application are as follows:

Mr. BUI VAN THANH born on 20 April 1969

in Quang Ninh, Vietnam;

Mr. CAO NGOC HUYNH born in 1955 in Hai Phong, Vietnam;

Mr. NGUYEN BA DAI born on 21 December 1965 in

Ngo Mag, Quinhon, Vietnam:

Mr. NGUYEN QUOC LOC

Mr. NGUYEN THANH QUANG born on 12 November 1965

in Cham Pha, Quang Ninh, Vietnam;

Mrs NGUYEN THI MINH HUONG born on 20 January 1965 in

Hai Phong, Vietnam;

Mrs NGUYEN THI KE born on 28 April 1951 in

Ha Noi, Vietnam;

Mr. NGUYEN TIEN MINH born on 2 April 1969 in

Hon Gai, Quang Ninh, Vietnam;

Mr. NGUYEN VAN BINH born on 5 January 1955 in

Cua Ong, Vietnam;

Mr. TRUONG VIET CAC born on 15 April 1965 in

An Duong, Phu-Than, Huong Phu,

Vietnam.

The applicants are represented in the proceedings before the

Commission by Mr. Johan van Lamoen, legal adviser, Paris.

The applicants who are at present detained in Chi Ma Wan

Detention Centre arrived in Hong Kong sometime after 16 June 1988.

All of the applicants are former residents of Vietnam who do not hold

a valid travel document. Prior to 16 June 1988 Vietnamese "Boat

People" landing in Hong Kong were automatically deemed to be refugees

and were accordingly granted asylum on the understanding that they

would re-settle elsewhere.

Following a change in policy, the applicants were treated as

illegal immigrants unless they could prove that they were refugees

within the meaning of the 1951 Convention Relating to the Status of

Refugees and the 1967 Protocol.

Each of the applicants has had his or her claim considered by

the Director of Immigration, pursuant to Section 13 A(1) of the

Immigration Ordinance and rejected on the basis that they had no well

founded fear of persecution in Vietnam, within the terms of the 1951

Convention. In consequence, they were detained in Detention Centres

pending their removal from Hong Kong to Vietnam.

The applicants applied to the Refugee Status Review Board to

review the decision of the Director of Immigration in accordance

with Section 13 F(1) of the Immigration Ordinance. The Review

Board upheld the findings of the Director of Immigration and

determined that they should continue to be detained pending their

removal from Hong Kong. Apart from a statement that they were not

considered to be refugees within the meaning of the 1951 Convention,

no reasons were given to support or justify the decision. The

decision of the Review Board is stated not to be subject to a review

or appeal in any court.

The United Kingdom have not made a declaration under Article

63 para. 1 extending the Convention to Hong Kong.

In the United Kingdom's instrument of acceptance of the right

of individual petition dated 14 January 1966 the following statement

appears:

"This declaration does not extend to petitions in relation

to anything done or occurring in any territory in respect of

which the competence of the European Commission of Human

Rights to receive petitions has not been recognised by the

Government of the United Kingdom or to petitions in relation

to anything done or occurring in the United Kingdom in

respect of such a territory or of matters arising there."

The declaration of 14 January 1966 is incorporated by

reference in the United Kingdom's most recent renewal of the right of

individual petition dated 14 January 1986.

COMPLAINTS

1. The applicants complain that their forcible return to Vietnam

will be contrary to Article 3 of the Convention in that each of them

will be subjected to a real risk of inhuman or degrading treatment or

punishment. They all allege that they will be subject to persecution

by the Communist regime in Vietnam. They point out that illegal

departure from the homeland constitutes treason, punishable under the

Vietnamese Penal Code, following proceedings before courts that are not

independent. They further submit that all property left

behind in Vietnam has been confiscated by the authorities and will not

be returned to them.

The applicants criticise the screening process to which they

were subjected in order to determine whether they were refugees. They

state that little was established in relation to the historical

background and personal origins of each applicant. Interpreter

qualifications were poor and many translation mistakes were made. No

procedure existed to record the interview, resulting in distorted,

mistranslated and unbalanced information being recorded as fact.

They refer to criticisms which have been made of the screening

process by inter alia the Bar Committee and Council of the Law Society

of Hong Kong and Amnesty International.

2. The applicants further submit that their detention is not

justified under Article 5 para. 1 (f) of the Convention. They claim

that their detention is arbitrary and unrelated to the prospect of

removal to Vietnam. They claim that Hong Kong law permits detention

for only a limited period.

3. The applicants point out that other aliens under the

Immigration Ordinance may not be detained unless there is a risk that

they might abscond or that they constitute a threat to national

security. They can only be detained for limited periods subject to

proper administrative review. The applicants complain that they are

therefore the victims of discrimination, contrary to Article 14 of the

Convention in conjunction with Article 5 para. 1 (f).

4. The applicants further complain under Articles 3 and 8 of the

Convention that their conditions of detention in Chi Ma Wan Detention

Centre constitute inhuman and degrading treatment and are in breach of

their right to respect for their private and family life. They state

that they are living in overcrowded barracks in cramped and unhygienic

circumstances which do not permit even a minimum level of privacy.

They note that many human rights organisations have denounced the

intolerable conditions in Chi Ma Wan Detention Centre and in other

detention centres throughout Hong Kong.

5. The applicants further complain that they are unable to

challenge the lawfulness of their detention before a court in breach

of Article 5 para. 4 of the Convention.

6. Finally, the applicants complain that they do not enjoy an

effective remedy, as required by Article 13 of the Convention, in

respect of their complaint under Article 3 concerning their forcible

repatriation to Vietnam and under Articles 3 and 8 regarding the

conditions of detention in Chi Ma Wan Detention Centre.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 January 1990 and

registered on 6 February 1990. The Commission first examined the

application on 10 February 1990 and refused an application that the

United Kingdom be requested, under Rule 36 of the Commission's Rules

of Procedure, not to deport the applicants to Vietnam pending an

examination of the application.

THE LAW

The applicants, who are detained in detention camps in Hong

Kong, complain that their forcible return to Vietnam will be contrary

to Article 3 (Art. 3) of the Convention. They also complain that their

detention in Hong Kong is unrelated to the prospect of removal to

Vietnam and is thus not justifiable under Article 5 para. 1 (f)

(Art. 5-1-f) of the Convention. Further, they complain under Article

14 in conjunction with Article 5 para. 1 (f) (Art. 14+5-1-f) that they

are being discriminated against in comparison with other aliens who

may not be detained under the relevant law unless there is a risk

inter alia that they might abscond. The applicants also complain

under Articles 3 (Art. 3) and 8 (Art. 8) of the Convention that their

conditions of detention in Chi Ma Wan Detention Centre are

characterised by serious over-crowding and lack of proper hygiene in

circumstances which permit little privacy. They complain further that

they are unable to challenge the lawfulness of their detention before

a court in Hong Kong, contrary to Article 5 para. 4 (Art. 5-4) of the

Convention. Finally, the applicants complain under Article 13

(Art. 13) of the Convention that they have no effective legal remedy

under Hong Kong law in respect of their complaints relating to their

fear of persecution in Vietnam and their conditions of detention in

Hong Kong under Articles 3 (Art. 3) and 8 (Art. 8) of the Convention.

The applicants state that they are aware that the United

Kingdom have not made a declaration under Article 63 para. 1

(Art. 63-1) of the Convention extending the Convention to the

territory of Hong Kong. However, they submit that the Commission has

jurisdiction to examine their complaints since the policy of the

forcible repatriation of Vietnamese refugees is in reality the

policy of the United Kingdom and since the Hong Kong authorities

exercise their functions on the basis of decisions taken by the United

Kingdom. They point, in this respect, to the presence of a

high-ranking Whitehall official who, they claim, acts as the

Vietnamese Refugee Co-ordinator stationed in Hong Kong, as well as to

discussions in the House of Commons and declarations of United Kingdom

officials. They also refer to various decisions of the Commission

concerning Contracting Parties' responsibilities under the Convention

in respect of matters which occur outside their territory but within

their jurisdiction within the meaning of Article 1 (Art. 1) of the

Convention (inter alia No. 6231/73, Hess v. the United Kingdom, Dec.

28.5.75, D.R. 2 pp. 72-73; Nos. 6780/74 and 6950/75, Cyprus v.

Turkey, Dec. 26.5.75, D.R. 2 pp. 125, 137).

The relevant provisions of Article 63 (Art. 63) provide as follows:

"1. Any State may at the time of its ratification or at any

time thereafter declare by notification addressed to the

Secretary General of the Council of Europe that the present

Convention shall extend to all or any of the terrritories

for whose international relations it is responsible.

...

4. Any State which has made a declaration in accordance

with paragraph 1 (Art. 63-1) of this Article may at any time

thereafter declare on behalf of one or more of the territories to

which the declaration relates that it accepts the competence of the

Commission to receive petitions from individuals, non-governmental

organisations or groups of individuals in accordance with Article 25

(Art. 25) of the present Convention."

The Commission notes that the applicants' complaints concern

essentially the acts of the Hong Kong authorities and the relevant

provisions of Hong Kong immigration law. Such matters, however, could

not be the subject of examination by the Commission since the United

Kingdom have not made any declarations under Article 63 paras. 1

(Art. 63-1) and 4 (Art. 6-4) extending the Convention to Hong Kong and

accepting the competence of the Commission to receive petitions in

respect of matters occurring within that territory.

The Commission has had regard to the applicant's submissions

that the acts of the Hong Kong authorities are based on United Kingdom

policy with the consequence that the matters complained of by the

applicants fall within the jurisdiction of the United Kingdom for

purposes of Article 1 (Art. 1) of the Convention.

The Commission notes that Article 1 (Art. 1) of the Convention

provides that "The High Contracting Parties shall secure to everyone

within their jurisdiction the rights and freedoms defined in Section 1

of the Convention". It is clear from the case-law of the Commission

that the concept of jurisdiction in Article 1 (Art. 1) is not limited

to the territory of a High Contracting Party and may extend in certain

circumstances to matters which occur outside their territory (see

e.g. Nos. 6780/74 and 6950/75, Cyprus v. Turkey, loc. cit.).

However the Convention system also provides the State with the

option of extending the Convention to territories for whose

international relations it is responsible by lodging a declaration

under Article 63 para. 1 (Art. 63-1) of the Convention, with the

result that matters relating to such territories fall within the

jurisdiction of the High Contracting Party within the meaning of

Article 1 (Art. 1) of the Convention. It is an essential part of

the scheme of Article 63 (Art. 63) that a declaration extending the

Convention to such a territory be made before the Convention applies

either to acts of the dependent Government or to policies formulated

by the Government of a Contracting Party in the exercise of its

responsibilities in relation to such territory. Accordingly, in the

present case even if the Commission were to accept that the acts of

the Hong Kong authorities were based on United Kingdom policy, it must

find that it has no competence to examine the application since no

declaration under Article 63 para. 1 (Art. 63-1) has been made in

respect of Hong Kong.

It follows that the application is incompatible ratione loci

with the provisions of the Convention within the meaning of Article 27

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

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BUI VAN THANH AND OTHERS v. THE UNITED KINGDOM

BUI VAN THANH AND OTHERS v. THE UNITED KINGDOM