Ben Keith comments in Safeguard Defenders on the 6 October 2022 ECtHR's decision, which could stop European extraditions to China. Read the article in full below.
Just a few weeks ago, on 6 October, the European Court of Human Rights (ECtHR) unanimously found that the extradition of a Taiwanese national to China, which Poland’s courts had cleared earlier, would place him at significant risk of ill-treatment and torture.
This momentous decision will most likely mean European countries will find it near impossible to extradite suspects to China again.
It is hard to overstate how influential this decision could be, and how it, in one swoop, has done more to protect basic rights from being undermined by China, as enshrined in the European Convention on Human Rights (ECHR), than most or all European government actions so far.
The ECHR is a legally binding international judicial instrument and goes further than similar international treatises. It ties 46 European countries to one legally-binding convention, and, notably, does only apply to EU states. The only European countries not bound by it are Belarus and Russia (the latter which was expelled in 2022 after refusing to follow a decision by the court).
Liu v Poland
Click here to download the judgment: Liu v Poland (Application no. 37610/18).
The case was brought by Taiwanese citizen Liu Hongtao (written as Hung Tao Liu in the court decision). His extradition had been approved by Poland’s legal authorities, including its Supreme Court. The appellant held that his extradition to China would violate Articles 3 and 6 of the ECHR, concerning torture and ill-treatment and deprivation of the right to a fair trial.
The verdict is set to guide all local European countries’ court decisions on extradition to China in the future, as well as governments, which will now have to approve the initiation of an extradition process once requested by China, despite knowing that court approval would be unlikely.
Key points about this case and decision are:
- It is the first known instance of the ECtHR reviewing a case concerning extradition to China;
- Liu Hongtao does not belong to a religious or ethnic minority, nor is he a political dissident or outspoken critic of China. Rather, he is alleged to have committed online fraud, a white-collar crime — historically the easiest cases for Beijing to successfully seek extradition;
- The unanimous decision is a very clear rejection of extradition because of Article 3 (torture and ill-treatment);
- The court also found his extremely long detention in Poland awaiting a final decision (now over five years) to be a violation by Polish authorities of Article 5 against arbitrary detention;
- Even though Polish authorities are able to lodge an appeal to take the case to the grand chamber, the highest organ of the court, the clear-cut decision makes this unlikely, and if filed, would likely be rejected, and could lead to an even stronger verdict against Poland;
- The verdict, unless an appeal is lodged, will go into effect three months after its date of issue (October 6);
- The court also called out China’s recent refusal to cooperate with UN bodies, such as its refusal to submit reports to the Committee Against Torture (overdue since late 2019). It also judged China’s informal promises to Polish authorities to be unconvincing;
- Lawyers working on current extradition cases in both Italy and Cyprus are already using the decision to ensure denial of extradition requests ongoing in those countries.
Liu’s lawyer at the ECtHR, Polish Professor of law Marcin Gorski concurs that the outcome is of significance, and points to the unanimous decision by the court as of importance, reducing the likelihood that Poland or others would appeal the verdict.
Effect of ruling
This legally-binding decision should upon coming into effect lead to:
- All current extradition requests in the region to China that are being processed should be denied,
- Ministries of justice in relevant countries should stop allowing requests from China to be brought forth for judicial processing, and
- Cases that have been approved for extradition but have not yet been executed should be stopped.
There are three circumstances that make this decision disruptive. Firstly, the Court issues the judgment in a case of an alleged common offence (not a political or military one). Secondly, the decision is related to a person not involved in political activities or belonging to any religious or ethnic minority. Moreover, the Court highlights that, considering:
"the extent to which torture and other forms of ill-treatment are credibly and consistently reported to be used in Chinese detention facilities and penitentiaries", the extraditee is not asked to prove "specific personal grounds of fear".
In conclusion, the Court issued a decision which is not the result of specific circumstances connected to the person of the extraditee, the crime allegedly committed, or other outside elements. According to the Court, everyone will face a real risk of ill-treatment if extradited to China.
It will also mean increased pressure on the 46 European countries that have extradition treaties with China to suspend such treaties (see map below).
Ben Keith, a lawyer specialising in extradition matters and with longstanding experience of working with the ECtHR says:
'The judgment in Liu is unusual from the ECtHR. It is the first case to reach the Strasbourg court in relation to extradition to China. Many other case have not got permission, for instance the 94 individuals extradited from Spain.'
Not only do these treaties represent a severe threat to the rule of law in Europe, but with this decision they will be rendered meaningless, merely standing as a symbolic victory for China in its attempt to expand “judicial cooperation” and legitimacy for its quickly deteriorating legal system. The two countries with signed but not ratified treaties, Greece and Turkey, should review any pending ratification in this new light.
Analysis of verdict
The court noted that the Polish authorities had not sought any diplomatic assurances, but merely informal statements from China to support the extradition.
Ben Keith comments that:
'The comment about assurances is concerning. Assurances are used in extradition and some immigration cases as a remedy for human right issues. But an assurance must be a solemn diplomatic promise, so that if breached there can be some adverse comment made. There is in my experience no remedy for a breach of an assurance other than an apology. In reality any assurance given by China in extradition must be view with suspicion if not incredulity. Torture is so rife and so systemic that any assurance is likely to be worthless.'
According to the court:
“The assessment of [Polish] domestic courts did not include any analysis whatsoever of the most recent information provided…”, nor the more general information, which indicates systematic ill-treatment and torture. Therefore, the Polish courts failed in their duty to take Article 3 into consideration.
Safeguard Defenders’ comprehensive practical manual on how to block extraditions to China, Hide and Seek – A manual on countering extraditions to China, outlines all the issues touched on by this decision for all countries. It is a full study of all aspects of extraditions to China, the risks involved for those targeted, and how it undermines the rule of law to engage in such cooperation.
The court was also asked to deny the extradition under Article 6, on the right to a fair trial, but the court concluded that, as the extradition had already been stopped due to the Article 3 violation, there was no need to make a decision on the right to a fair trial.
This is disappointing. A review of that, something that has never been made by the court before, could have resulted in them barring extraditions on the basis of lack of a fair trial in China, adding further pressure on European countries to suspend existing extradition treaties.
A prior decision by the ECtHR court already established that “country reports” from Foreign Ministries, and reports from UN organs, are to be viewed as authoritative. Much of the information standing as the basis for the decision comes from UN reports, including those from the Committee Against Torture. The reports on China from 2008 and 2016 are striking in how they clearly spell out systematic torture and ill-treatment. Notably, China’s latest report to the committee was due at the end of 2019 but has still not been filed.
This was also echoed in the ECtHR decision, when it said, concerning some information on the situation of torture being old, that this was “due to the apparently limited cooperation of the Chinese government with international human rights’ protection bodies”.
The court in its verdict also cited the decision against extradition by the Swedish Supreme Court in 2019, where Safeguard Defenders provided expert witness testimony as well as reports from Amnesty International, Freedom House, Human Rights Watch and the US Department of State Country report (2018).
The verdict also concluded that the fact that Poland’s Minister of Justice had not yet signed off on the execution of the extradition decision by Polish courts did not constitute having failed to exhaust all domestic mechanisms before the case being taken to the ECtHR. This minor point is of importance, as it sets a precedent that one need not wait for the government to offer final approval of execution of an extradition, but can do so before, once the highest court has given the green light.
Technically, the ruling is based on Article 39, an interim measure, which will force the government to continue to not extradite Liu until the decision comes into effect, which will happen in three months, barring any attempted appeal. It was such an interim measure, issued earlier by the ECtHR on 12 September 2018 after it received the case, which has kept the Polish government from executing the extradition.
Who is Liu Hongtao, and why this decision will embarrass the Spanish authorities
According to court documents, Liu Hongtao, from Taiwan, was born in 1980. He is currently being held at the Warsaw - Białołęka Detention Centre and was represented in court by lawyer M. Gorski. He will be set free once the ruling goes into effect, three months after the verdict was delivered (6 October).
Liu is accused of being part of a major online fraud group operating out of Spain. The group of nearly 260 people consisted primarily of Taiwanese citizens. A joint Spanish-Chinese policing operation grabbed the group in 2016-2017.
In 2017/2018, Spanish courts, ignoring serious considerations afforded in the ECHR, approved the extradition of some 208 Taiwanese, in several batches, to China, despite protests from Taiwan. The lawyers representing them attempted to file the case to the ECtHR, but it was rejected, and the extraditions were carried out. Contact with several of those extradited has been lost; the lawyers have been unable to learn where they are being held, or under what conditions.
The Polish authorities cited the Spanish decision in their defense, but this was overruled by the ECtHR, adding added further embarrassment for the Spanish courts. Spain is one of the countries to most frequently extradite to China, and one of very few European countries where Safeguard Defenders is not aware of any rejected cases.
INTERPOL issued a red notice for Liu on 8 December 2016, and he was detained in Poland on 6 August 2017. On 1 September that year, China requested Liu’s extradition. Polish authorities asked for additional information shortly thereafter, which was provided 8 January 2018.
On 27 February 2018, just a month and a half later, the Polish Court concluded the extradition could proceed, and that the information and assurances provided, which upon review are severly lacking at best, were sufficient. The Warsaw Appeals Court upheld the decision on 26 July 2018, saying it agreed because the information provided by China:
“emphasised that there were no reasons to conclude that the applicant would be at any risk of a violation of his rights”.
A request on 9 August 2018 for an interim measure, to stop the extradition pending further review, was issued by the ECtHR, and the execution of the extradition stopped. An appeal to the Supreme Court was made, which on 1 October 2020 dismissed the appeal. It was then that Liu's lawyers decided to take his case to the ECtHR.
Liu has now been in custody for more than five years. Due to this, Polish authorities themselves have now been found to be in breach of Article 5 of the ECHR, concerning arbitrary detention. Besides denying the extradition and ordering Liu to be set free, the court also instructed Poland to pay damages.
Poland’s courts have since seemingly learned, and in 2021 blocked a further extradition request, realizing that assurances by China lack legal validity even according to Chinese law, and that even if they were valid, would be practically impossible to carry out.
Cyprus, Italy and Portugal have cases of concern
A core concern for Safeguard Defenders are those cases that have recently been approved for extradition but have not yet been carried out or whose decisions are pending. There are also expected forthcoming extraditions to consider, Safeguard Defenders already knows of one.
Take, for example, Zhang Haiyan, in Portugal. Portugal’s judicial system failed, in an embarrassment to European commitment to the rule of law — including at the Supreme Court level — to consider the key issues that such an extradition should depend on, and their own ECHR obligations.
Zhang's lawyers have been preparing to file her case to the ECtHR. Safeguard Defenders is preparing to ask the UN’s Committee Against Torture to intervene on Zhang’s behalf, should it appear that Portugal is about to extradite her. The recent decision must mean that the Portuguese Ministry of Justice must deny the extradition. (Safeguard Defenders have made the same appeal for Idris Hasan, a Uyghur detained by Morocco pending extradition to China.)
Similarly, an ongoing case against Ma Chau in Cyprus must end in rejection to avoid placing Cyprus in the crosshairs of the ECtHR. However, China has already issued a (faulty) INTERPOL red notice on his wife in retribution, seeking her extradition as well. This request that must be denied by the Cypriot Ministry of Justice to avoid her having to fight through a multi-year legal battle that can only end in her victory anyway, and to avoid wasting Cypriot taxpayer money and harm to the country's legal system.
Likewise, a recent new case, in Italy, must draw to a quick conclusion, and the Court of first instance to dismiss the proceedings. The case, triggered by a Red Notice arrest of the former top manager of a well-known Chinese company, is related to an alleged economic crime.
During the ongoing trial it came to light that a relative of the extraditee was unlawfully arrested for a six-month period, so as to force a return of the extraditee to China (similar behavior to that exposed in the Cyprus case above).
INTERPOL, for its part, must move quickly to remove red notices issued by China once extraditions are denied, in accordance with its rules and charter, especially after Safeguard Defenders exposed how China abuses the INTERPOL system, without any penalties.
The extradition process
The process varies from country to country, but almost always includes both a governmental and a judicial procedure. Most commonly, the government that receives the request must first decide whether to allow it at all. If it does, the request then goes through the court system. In some countries, the Minister of Justice must later also approve the execution of the extradition once the court system has approved it. There are many points at which both governments and judicial authorities can squash what will, with this new verdict, be unlawful acts that both harm European nations and benefit China’s attempts at spreading its long-arm policing and control.
The problem with extradition treaties with China
Most, but not all, countries can extradite an offender if requested. No bilateral treaty is needed. In addition, for economic crimes and drug crimes, there is an international, multilateral treaty under the United Nations Office on Drugs and Crime. The only purpose for a bilateral treaty is to expedite and formalize the process.
Considering the weakness of China’s judiciary, and its significant deterioration in recent years, there is no reason to sign an extradition treaty with China.
Safeguard Defenders’ Involuntary Returns report outlines the many ways China seeks the return of claimed fugitives using illegal means, from “persuasion” to sending agents overseas to harassment and outright kidnappings. The report shows how many times this has been done in countries China has extradition treaties with, and reveals that 10,000 people, mostly higher profile targets, have been successfully returned via the Chinese police’s "Fox Hunt" operation.
As Safeguard Defenders has shown repeatedly with our research, and even recently confirmed by the Chinese Ministry of Foreign Affairs (MOFA), Beijing views extradition treaties as a means of building legitimacy for its practices of transnational policing. It freely and wilfully ignores extradition procedures when other, illegal, means are easier.
Earlier this month, MOFA said extraditions are “cumbersome”, and since some European countries deny requests, China feels it has the right to use other methods, a practice that severely undermines the judicial sovereignty of the countries affected. Yet despite this admission, not one European government has reacted.
Europe in particular has a legal profession, prosecutors and judges who are woefully ignorant about modern China and its criminal justice system, and who regularly fail in basic undertakings, such as considering extraditions under the ECHR. A bilateral treaty, established by a country’s lawmakers, sends a powerful signal to prosecutors, judges and judicial ministries that, in general, extraditions to China are acceptable. This may not be the intended signal from lawmakers, but it is nonetheless the signal being broadcast across their courts.
Safeguard Defenders latest investigation, 110 Overseas, chronicles, using only Chinese police, government and state media sources, China's work to use “persuasion to return” tactics on Chinese nationals abroad, using threats against targets’ children, spouses and families. China claim 230,000 people were returned this way from April 2021 to July 2022. Tied to that is the establishment of Chinese police “service stations” overseas, which in some instances have been proven to partake in these operations.
In view of this development, in view of a growing number of courts refusing extraditions and, in particular, in view of the severe deterioration of the Chinese criminal justice system, each EU member state which holds an extradition treaty with China needs to suspend it in a similar way that governments suspended treaties with Hong Kong after China passed its draconian National Security Law. To maintain an extradition treaty with China is not only cowardly, but disingenuous considering the suspension of treaties with Hong Kong. Such treaties with China undermine Europe’s commitment to the rule of law and the ECHR. The only beneficiary is Beijing, which will use ratification to convince other nations to sign one, too.
For more information, see the Safeguard Defenders factsheet on extraditions to China, downloadable as a one-page PDF here. Read the original article here, published in Safeguard Defenders on 3 November 2022.
Ben Keith is a leading barrister specialising in cross-border and international cases. He deals with all aspects of Extradition, Human Rights, Mutual Legal Assistance, Interpol, Financial crime and International Law including sanctions. He represents governments, political and military leaders, High Net Worth individuals, human rights defenders and business leaders in the most sensitive cases.
He has extensive experience of appellate proceedings before the Administrative and Divisional Courts, Civil and Criminal Divisions of the Court of Appeal as well as applications and appeals to the European Court of Human Rights (ECHR) and United Nations. He is top ranked in the Legal 500 and Chambers & Partners for his extradition and international work.