China

Compensation for wrongful detention is not payable where, at the time of the arrest and the subsequent imposition of the custodial measure, the arrest of the person concerned was entirely lawful and only thereafter a ruling of inadmissibility was issued due to the disappearance of the underlying basis, following the requesting State’s failure to submit or pursue the extradition request. Accordingly, where a provisional arrest and the subsequent provisional custodial measure were ordered for a period of 30 days — a period even shorter than the forty days provided for under Article 715(6) of the Italian Code of Criminal Procedure — in compliance with the applicable bilateral extradition treaty, in respect of a person subject to an arrest warrant issued by a foreign judicial authority, and on the basis of a finding of a risk of absconding, there is no scope to recognise wrongful detention, not even in the form of so-called “formal” unlawfulness.

In extradition proceedings, the reciprocity condition is satisfied when the requesting State provides an assurance of substantially equivalent treatment — formal diplomatic notes from the Chinese Embassy confirming no restrictions on Italy's participation in passive extradition proceedings are sufficient to this end. The legitimacy of a sub-state authority to represent the requesting State is confirmed by the Embassy and cannot be challenged under the requested State's domestic law. Any authority empowered under the requesting State's internal law to act in extradition proceedings must be recognized as a procedural party. Under Article 702 of the Italian Code of Criminal Procedure, the only formal requirement for the requesting State's intervention is the appointment of a lawyer admitted to practice before Italian courts, with no further formalities prescribed. A distinction must be drawn between mere participation in the proceedings — which requires only an explicit expression of interest — and full procedural standing as a party, which requires the appointment of counsel and confers the right to participate in oral argument and to lodge an independent appeal before the Court of Cassation.

In extradition proceedings, as regards compensation for unlawful detention and the “formal unlawfulness” of the custodial measure, until a complete extradition request has been received and translated into Italian, it is not possible to verify whether the conditions for surrender are actually met, nor can it be assumed that the requesting State will fail to submit the extradition request within the prescribed time limits (with the consequent lapse of the custodial measure). Therefore, at this initial stage, the Court must assess the existence of a risk of flight on the basis of the elements available at that time (and this assessment will form the basis for any subsequent evaluation of unlawful detention).

Extradition and coercive measures: the requirements of concreteness and present relevance of flight risk must be assessed by the judge in light of the purpose of surrender, to which the procedure is directed, and therefore through a prognostic assessment, based on concrete elements drawn from the requested person’s life, as to the risk that he or she may evade it by leaving the national territory.

The applicant, a Chinese national of Uyghur Muslim origin, challenged a deportation order issued by Turkish migration authorities.The authorities designated Kyrgyzstan as a safe third country.The applicant argued that removal to Kyrgyzstan created a substantial risk of onward surrender to China, where he faced possible persecution due to his ethnic and religious identity.He submitted evidence indicating prior transfers of Uyghurs from Kyrgyzstan to Chinese authorities.The administrative court rejected his challengeThe Constitutional Court held that domestic courts failed to conduct sufficient scrutiny of:- direct removal risk to China;- indirect surrender risk through Kyrgyzstan;- country-specific human rights concerns.The Court found that effective procedural safeguards against refoulement had not been provided.

In cases of extradition to the China, a concrete risk of exposure to inhuman or degrading treatment must be considered to exist (as held by the European Court of Human Rights in Liu v. Poland, 6 October 2022), in light of multiple reliable international sources reporting systematic human rights violations, the tolerated use of forms of torture, and the substantial impossibility for independent institutions and organizations to verify the actual conditions in detention facilities.

The Supremo Tribunal Federal refused an extradition request submitted by China against a Chinese national accused of unlawful collection of public deposits under Article 176 of the Chinese Criminal Code. Although the Court found that the requirements of double criminality, double punishability and the remaining conditions for extradition were satisfied, it denied extradition due to the concrete risk of life imprisonment or even the death penalty, in the absence of formal diplomatic assurances regarding commutation of such penalties. The STF further held that the requesting State had failed to demonstrate its ability to guarantee the extraditee’s right to due process of law and to a fair, impartial and independent trial. According to the Court, the inability of the requesting State to ensure the right to a fair trial constitutes, in itself, sufficient grounds for refusing extradition.

In matters of passive extradition to China, where the offence for which surrender is requested is, in abstract terms, punishable by the death penalty, pursuant to Article 698(2) of the Italian Code of Criminal Procedure, surrender cannot be ordered in the absence of a final and irrevocable judicial decision excluding the application of capital punishment in the конкрет case; general assurances provided by the requesting State are insufficient. The Court clarified that the provision set out in Article 3(f) of the treaty between Italy and China does not apply. According to that provision, for the purposes of executing an extradition request, it is sufficient that there are elements excluding a “well-founded fear” of being subjected to “other cruel, inhuman or degrading treatment or punishment”. However, that rule concerns the manner of execution of a penalty necessarily different from the death penalty.

Any divergence from the parameters of the Italian criminal system is, as a rule, irrelevant, unless such divergence is wholly unreasonable and manifestly conflicts with the general principles of legality and proportionality of penalties. Accordingly, extradition to China must be refused in respect of a person accused of conduct classified as fraud under Chinese law, which, under Italian law, would fall within the prohibition of pyramid selling schemes and chain sales under Article 5 of Law No. 173 of 2005. This is because, under the Chinese Criminal Code, that offence is entirely indeterminate as regards the maximum custodial sentence that may be imposed on the applicant if extradited and ultimately convicted, which is incompatible with the fundamental principle of the Italian legal system requiring the legislative predetermination of the maximum penalty.