Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14037/88

by Lorrain Esme OSMAN

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

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 30 June 1987

by Lorrain Esme OSMAN against the United Kingdom and registered on

2 July 1988 under file No. 14037/88;

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 applicant, Mr. Lorrain Esme Osman, is a Malaysian citizen

born in 1931. He is a banker by profession and is at present detained

at HM Prison Pentonville, London, England. He is represented, in the

proceedings before the Commission, by Mr. R. Johnson, a solicitor in

the firm of Johnson and Walsh, Birmingham.

The facts of the case may be summarised as follows:

The applicant was committed to custody on 1 June 1987 by Bow

Street Magistrates' Court to await his extradition to Hong Kong under

the provisions of the Fugitive Offenders Act 1967. His extradition

had been sought by the Hong Kong authorities on a number of charges of

fraud and conspiracy to defraud shareholders of the bank of Malaysia.

The applicant applied for habeas corpus challenging the order

of the Magistrate on grounds, inter alia, of insufficiency of

evidence, want of jurisdiction and non-compliance with statutory

requirements. His application was refused by the Divisional Court of

the Queen's Bench on 30 March 1988 and leave to appeal to the House of

Lords refused on 14 July 1988.

The applicant applied again for habeas corpus based on two

further grounds, firstly claiming diplomatic immunity as a diplomatic

agent of the Republic of Liberia and secondly, submitting that the

proceedings in Hong Kong and Malaysia, antecedent to the committal

order, constituted an abuse of process. In its judgment of

29 December 1988 the Divisional Court found that the applicant did not

qualify for diplomatic immunity and that the court had no competence

to investigate alleged irregularities in proceedings overseas. The

application for habeas corpus was accordingly dismissed.

The applicant states that if he were returned to Hong Kong and

convicted of these offences, he would be likely to receive a very

lengthy sentence of imprisonment. One of the applicant's associates,

whose alleged involvement in these offences was of a lesser degree than

that alleged against the applicant, pleaded guilty to four charges

arising out of the same matter and was recently sentenced to

fifteen years' imprisonment by the Hong Kong Court of Appeal. The

Court of Appeal had increased a four-year sentence given by the trial

judge.

The applicant maintains that were he to receive a similar

sentence he would not have completed it by 1997. By a Joint

Declaration of the Governments of the United Kingdom and the People's

Republic of China on the question of Hong Kong made in 1984, it has

been declared that China will resume sovereignty over Hong Kong as

from 1 July 1997 (Articles 1 and 2).

Although the Joint Declaration purports to guarantee various

rights and freedoms which, it declares, will continue to be enjoyed by

people in Hong Kong after 1997, the applicant is fearful that after

China has resumed sovereignty he will be subjected to further

prosecution and/or punishment under the Chinese Criminal Code.

The Joint Declaration provides in Article 3 (3) that the Hong

Kong Special Administrative Region (S.A.R.) will be vested with

executive, legislative and independent judicial power and that the

laws currently in force in Hong Kong will remain basically unchanged.

These policies are to be stipulated in a Basic Law of the S.A.R.,

which will remain unchanged for 50 years. To ensure a smooth transfer

of government and the effective implementation of the Joint

Declaration, a Sino-British Joint Liaison Group will be set up to deal

with transitional problems.

COMPLAINTS

The applicant complains that if he is returned to Hong Kong he

will eventually be transferred to the Chinese authorities after the

resumption of sovereignty. He fears that in such an eventuality he

will be subjected to torture or to inhuman and degrading treatment, or

be held guilty of a crime on account of acts or omissions which did

not constitute a criminal offence under the relevant national or

international law when they were allegedly committed and/or receive a

heavier penalty than the one which was applicable at the time the

criminal offence was committed. He invokes Articles 3 and 7 of the

Convention.

The applicant claims that under the Chinese Criminal Code the

death penalty may be applicable in respect of certain of the charges

against him. Moreover, Chinese law does not recognise the

prohibitions embodied in Article 7 para. 1 of the Convention on the

retrospective imposition of criminal liability or the retrospective

increase in applicable penalties.

He further claims that prisoners in China have been subjected

to punishments which by international standards would be regarded as

cruel, inhuman or degrading. He fears that after 1997 he might be the

victim of such treatment.

THE LAW

1. The applicant complains that, if he is returned to Hong Kong

to stand trial and convicted, he may on the resumption of Chinese

sovereignty in 1997 face violations of his rights under Article 3 (Art. 3) of

the Convention.

Article 3 (Art. 3) provides:

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

degrading treatment or punishment."

The applicant submits that under the Chinese Criminal Code his

case may be re-opened and new heavier penalties, including the death

penalty may be imposed. He also submits that prisoners under the

Chinese authorities have been subjected to treatment contrary to

Article 3 (Art. 3) of the Convention.

The Commission recalls its case-law that a person's

deportation or extradition may give rise to an issue under Article 3 (Art. 3)

of the Convention where there are serious reasons to believe that the

individual will be subjected, in the receiving State, to treatment contrary to

that Article (see No. 10308/83, Altun v. the Federal Republic of Germany, Dec.

3.5.83, D.R. 36 pp. 209-235; No. 10078/82, M. v. France, Dec. 13.12.84, D.R.

41 p. 103, also No. 10479/83, Kirkwood v. the United Kingdom, Dec. 12.3.84,

D.R. 37 pp. 158-191; No. 14038/88, Soering v. the United Kingdom, Comm. Rep.

19.1.89, paras. 94-99). It is only in exceptional circumstances that the

removal of a person will give rise to an issue under Article 3 (Art. 3) and the

burden lies on the applicant to substantiate his fear that he will be exposed

to treatment or punishment prohibited under that provision (see No. 8581/79,

Dec. 6.3.80, D.R. 29 p. 48).

The Commission notes however that in the present case the applicant's

fears of treatment contrary to Article 3 (Art. 3) depend on a number of

hypothetical factors, namely, that the applicant is convicted, that he is

sentenced to more than eight years imprisonment, that his detention falls under

the control of the Chinese authorities and that the proceedings against him are

re-opened. The Commission also recalls that the Sino-British Joint Declaration

provides for the same laws and policies to be carried over for 50 years and

that a Sino-British liaison committee is to be set up to make provision for

transitional problems.

The Commission finds in these circumstances that the applicant has

failed to establish that he is faced with an imminent act of the respondent

Government which might expose him to any real risk of treatment contrary to

Article 3 (Art. 3) of the Convention.

It follows that this complaint is manifestly ill-founded within the

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

2. The applicant also complains that on return to Hong Kong he may, on

resumption of Chinese sovereignty, face violations of his rights under Article

7 para. 1 (Art. 7-1) of the Convention, which provides:

"No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at

the time when it was committed. Nor shall a heavier

penalty be imposed than the one that was applicable at

the time the criminal offence was committed."

The Commission may however only examine complaints directed

against one of the States Parties to the Convention. The respondent

Government could not in this case be held directly responsible under

the Convention for the retrospective imposition of criminal liability

or retrospective increase in penalties allegedly provided for under

Chinese law. The Commission also finds that the proposed extradition

of the applicant to Hong Kong could not give rise to the

responsibility of the respondent Government under Article 7 (Art. 7) of the

Convention.

It follows that this complaint is incompatible ratione

personae 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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OSMAN v. THE UNITED KINGDOM

OSMAN v. THE UNITED KINGDOM