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)