AS TO THE ADMISSIBILITY OF Application No. 24110/94 by F.T. against the United Kingdom The European Commission of Human Rights sitting in private on 18 October 1994, the following members being present: MM. A. WEITZEL, President C.L. ROZAKIS F. ERMACORA E. BUSUTTIL Mrs. J. LIDDY MM. M.P. PELLONPÄÄ B. MARXER G.B. REFFI B. CONFORTI N. BRATZA I. BÉKÉS E. KONSTANTINOV G. RESS Mrs. M.F. BUQUICCHIO, Secretary to the Chamber Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 7 February 1994 by F.T. against the United Kingdom and registered on 9 May 1994 under file No. 24110/94; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts as submitted by the applicant may be summarised as follows. The applicant is a British citizen, born in November 1909 and is resident in the United Kingdom. He is represented before the Commission by Messrs. Colin Nott and Piers Gardner, solicitors and Mr. Colin Nicholls, a barrister practising in London. A. Particular circumstances of the case On 9 June 1993 the applicant was arrested on foot of a provisional warrant issued in the United Kingdom following a request for his extradition made by the Government of the United States. The warrant was issued pursuant to the Extradition Act 1989 (the 1989 Act") on the basis of information laid before Bow Street Magistrates' Court ("the Magistrates' Court"). The applicant appeared the same day before the Magistrates' Court and was bailed pending a full hearing of the extradition request. Since then he has been living at his home with his wife. Both a supporting affidavit sworn on behalf of the Government of the United States and a charge sheet completed at the Magistrates' Court referred to the applicant being 5 years younger than the age on his birth certificate. The reason for this error was that, many years previously, the applicant misrepresented his age in order to participate in the Royal Navy Reserve and subsequently the applicant retained this younger age for all practical purposes. By orders of the 11 August and 13 September 1993, made pursuant to section 5(4) of the 1989 Act, the Secretary of State of the United Kingdom confirmed that a requisition had been received from the United States in respect of the applicant. The orders referred to the applicant obtaining property by deception, procuring the execution of a valuable security by deception, forgery, using a false instrument and false accounting which offenses are alleged to have occurred between 1976 and 1986 in the United States. These offenses carry, under the laws of the United States, a maximum cumulative penalty of 30 years. From 9 June 1993 to 2 February 1994 various documents were served, by the Government of the United Kingdom, on the applicant. Since then the applicant has received, in addition, approximately 3000 pages of documentation. Further documentation has yet to be served on the applicant and, to date, neither the information supplied to the Government of the United Kingdom (by the Government of the United States with the request for extradition) nor that supplied to the Magistrates' Court (by the Government of the United Kingdom) has been made available to the applicant. On 23 October 1993 and on 8 February 1994 the applicant attended a specialist in occupational health, for the purposes of obtaining a medical report for use in relation to the extradition proceedings. This report, dated 14 February 1994, confirmed, inter alia, the following health problems: - Heart disease, angina and mild congestive cardiac failure. - Medically obese (108.5 Kgs). - Chronic nocturia and chronic mild prostatism. - Chronic bronchitis requiring antibiotics two or three times a year. His lung volume and flow rates were substantially below average. - High blood pressure. - Maturity onset diabetes. - Recent treatment for malignant lesions on his face and chest. - Some mental deterioration due to age. The medical report also noted that the applicant is an old man, likely to die at any time and that congestive cardiac failure is one of the applicant's most significant health problems. The report went on to point out that the applicant is likely to suffer either a stroke or sudden heart attack and that the combination of obesity, hypertension and ischaemic heart disease make such a stroke or heart attack a likely terminal or pre-terminal event to the applicant's life. In addition the medical report stated that the applicant's health had deteriorated in the months between his first and second visit to this doctor, which deterioration was partly due to the stress of the ongoing proceedings. Furthermore, according to the medical report, a realistic appraisal of the applicant's life expectancy would indicate that the applicant would not live until the eventual outcome of the proceedings in the United States. (The applicant submits that his life expectancy is three years. The medical report did not give an estimate in terms of a number of years.) In conclusion, the medical report stated that imprisonment would pose "a serious danger to his physical ... health and probably to his life" and may result in mental confusion, collapse and disorientation, the latter scenario reflecting the doctor's experience with elderly patients in, inter alia, prisons. On 2 March 1994 the applicant's legal advisors wrote to the Secretary of State of the United Kingdom bringing the applicant's age and ill-health to his attention and inviting him to bring the extradition proceedings to a conclusion. The Secretary of State responded on 5 May 1994 indicating that, in light of the particular circumstances of the case, the matters raised by the applicant's legal advisors would be put to the United States authorities. Having received no further response, the applicant's legal advisors wrote to the Secretary of State and the Crown Prosecution Service ("CPS") on 7 September 1994, requesting both authorities to discontinue the extradition proceedings. The applicant claims that the CPS has the power to take such action under section 23 of the Prosecution of Offences Act 1985, or alternatively, that such power vests in the Secretary of State. The CPS responded on 12 September 1994 pointing out that the CPS had no power to discontinue the proceedings in these circumstances. By letter dated 15 September 1994 the Secretary of State indicated that he was awaiting a further response from the United States authorities. In or about early October 1994 the applicant issued proceedings for leave to apply for judicial review. The applicant is effectively seeking a declaration that the Secretary of State and/or the Director of Public Prosecutions have the power to discontinue the proceedings against him. The applicant is also seeking an order compelling those authorities to exercise this power and to decide whether the proceedings should be discontinued in light of the applicant's age and ill-health. The judicial review proceedings appear to be ongoing. The full hearing, on the extradition request from the United States, has yet to take place. B. Relevant domestic law The Extradition Act 1989 ("the 1989 Act") is the legislative framework through which extradition treaty arrangements between the United Kingdom and the United States are implemented at a domestic level. Section 5(4) of the 1989 Act reads as follows: "The Secretary of State shall signify to the Bow Street Magistrates Court that a requisition has been received in respect of the individual whose extradition is requested." An order made pursuant to section 5(4) of the 1989 Act constitutes formal confirmation to the Magistrates' Court of the extradition request without which order the Magistrates' Court would lose jurisdiction and the proceedings would come to an end. Section 23(3) of the Prosecution of Offences Act 1985 states that where, at any time during the preliminary stages of proceedings, the Director of Public Prosecutions gives notice to the clerk of the court that he does not want the proceedings to continue, they shall be discontinued. COMPLAINTS The applicant complains under: 1. Article 3 of the Convention that the initiation and maintenance, by the Government of the United Kingdom, of the extradition proceedings is inhuman treatment in light of his age and ill-health. 2. Article 3 of the Convention that the anticipated decision by the courts of the United Kingdom to extradite him to the United States, to face further proceedings and possibly imprisonment, would constitute inhuman treatment and punishment in light of his age and ill-health. 3. Article 5 of the Convention that his right to security of person is denied by reason of the extradition process which exposes him to treatment contrary to Article 3 of the Convention. 4. Article 8 of the Convention that the extradition process interferes unlawfully and unnecessarily with his home, family and private life. 5. Articles 2, 6 and 13 of the Convention. THE LAW 1. The applicant complains under Article 3 (Art. 3) of the Convention that the initiation and maintenance of the extradition proceedings, by the Government of the United Kingdom, constitutes inhuman treatment in view of his age and ill-health. The applicant also submits, in this regard, that those proceedings show an imbalance between the rights of the applicant and the general interest of the community. This imbalance is, according to the applicant, aggravated by his alleged inability to challenge the ongoing extradition proceedings (even by judicial review) on grounds of his age and ill- health which in turn means that the applicant feels he has no control over those proceedings. Article 3 (Art. 3) of the Convention reads as follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Commission notes, however, from material submitted by the applicant subsequent to the registration of his application, that it appears that he has recently made an application for leave to take judicial review proceedings to seek a declaration that the Secretary of State and/or the Director of Public Prosecutions has the power to discontinue the extradition proceedings, the latter pursuant to section 23 of the Prosecution of Offences Act 1985. The applicant also seeks an order compelling either of those authorities to use their powers to make a decision as to whether the extradition proceedings should be discontinued in light of the age and ill-health of the applicant. In addition the judicial review proceedings appear to be ongoing. In view of the above, the Commission finds this complaint premature and inadmissible on grounds of non-exhaustion within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention. 2. The applicant further complains under Article 3 (Art. 3) of the Convention that, in light of his age and ill-health, the anticipated decision by the courts of the United Kingdom to extradite him to the United States, where he would face further proceedings and possible imprisonment, would amount to inhuman treatment and punishment. The Commission recalls the judgment of the Court in the Vijayanathan and Pusparajah case (Eur. Court H.R., Vijayanathan and Pusparajah judgment of 27 August 1992, Series A no. 241, p. 87 para. 46). Both applicants, in that case, had already been directed to leave French territory, Mr. Pusparajah's application for exceptional leave to remain had been rejected and therefore all indications, in terms of the final decision on expulsion, were against the applicants. Nonetheless the Court, concluded that the applicants were not "victims" within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention because the final expulsion order had not, in fact, been made. In the present case, the Commission notes that no decision to extradite the applicant has, in fact, been taken by any domestic court. Indeed the applicant has received no court order, ministerial direction or even any formal indication of a preliminary nature in favour of his extradition. Therefore the Commission finds that, as matters stand, the applicant cannot claim to be a "victim of a violation" within the meaning of Article 25 para. 1 (Art. 25-1) of the Convention. Accordingly the Commission concludes that this complaint of the applicant is incompatible ratione personae with the provisions of the Convention and must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention. 3. The applicant also complains that his right to security of person is denied, because of the extradition process which exposes him to treatment contrary to Article 3 (Art. 3) of the Convention, and he invokes Article 5 (Art. 5) of the Convention in this regard. The Commission considers that, in view of the finding (at 1. above) in relation to Article 3 (Art. 3) of the Convention, this complaint of the applicant is also inadmissible on grounds of non- exhaustion pursuant to Article 27 para. 3 (Art. 27-3) of the Convention. 4. The applicant complains that the extradition process constitutes an unlawful and unnecessary interference with his home, private and family life and invokes Article 8 (Art. 8) of the Convention in this regard. Article 8 para. 1 (Art. 8-1) of the Convention reads as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence." The Commission considers that the applicant has not substantiated his complaint under Article 8 (Art. 8) of the Convention. Moreover the Commission notes that the applicant has not been detained at all, and has been living at home, since the commencement of the extradition proceedings. The Commission therefore concludes that the applicant's complaint in this regard is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 5. The applicant complains under Articles 2, 6 and 13 (Art. 2, 6, 13) of the Convention and in this regard the Commission has considered all of the facts and issues contained in the present application. Article 2 (Art. 2) of the Convention The Commission has considered the complaint of the applicant under Article 2 (Art. 2) of the Convention in the context of the applicant's submissions as to the impact on his health of the ongoing extradition proceedings in the United Kingdom Government. Article 2 para. 1 (Art. 2-1) of the Convention reads as follows: "1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law." However, even assuming that it is possible to examine this complaint under Article 2 (Art. 2) of the Convention in light of the above finding in respect of Article 3 (Art. 3) of the Convention, the Commission finds that the applicant has not demonstrated that it is the impact of the ongoing proceedings that threatens his life. Accordingly the Commission concludes that this complaint under Article 2 (Art. 2) of the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. Article 6 (Art. 6) of the Convention The Commission has considered the complaint of the applicant under Article 6 (Art. 6) of the Convention in the context of the applicant's initial claim that he had no opportunity to raise the issue of his age and ill-health to challenge the ongoing extradition proceedings. The Commission has also considered the applicant's complaint under Article 6 (Art. 6) of the Convention in the context of his claim that he did not receive, at the time of his arrest nor subsequently, the information given to the Government of the United Kingdom (by the Government of the United States grounding the request for extradition) or the information laid before the Magistrates' Court (by the Government of the United Kingdom). The relevant parts of Article 6 (Art. 6) of the Convention read as follows: "1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.... 3. Everyone charged with a criminal offence has the following minimum rights: a. to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him;...." The Commission recalls that Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention are not applicable to proceedings concerning extradition to a foreign country (No. 15776/89, Dec.5.12.89, D.R. 64 p. 269). Thus the Commission finds that the complaints of the applicant, in this regard, are incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant Article 27 para. 2 of (Art. 27-2) the Convention. Article 13 (Art. 13) of the Convention The Commission has examined the applicant's complaint under Article 13 (Art. 13) of the Convention in the context of the applicant's earlier submissions that he has no domestic remedy, in respect of the above complaints, because some remedies which are normally open to those charged with domestic criminal charges, (for example, nolle prosequi, stay on proceedings which are an abuse of the process of the court, habeas corpus or judicial review), are not available or effective in extradition proceedings. Article 13 (Art. 13) of the Convention provides as follows: "Everyone whose rights and freedoms as set forth in this convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." As noted by the Commission at 1. above, the applicant has recently made an application for leave to issue judicial review proceedings and is pursuing a remedy in the domestic courts which may be effective. The Commission therefore finds this complaint premature and accordingly manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to the First Chamber President of the First Chamber (M.F. BUQUICCHIO) (A. WEITZEL)