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)