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)