China

The People's Republic of China requested the extradition of two individuals — a mother and son residing in Paphos, Cyprus since 2014 — for prosecution in connection with the alleged unlawful absorption of public deposits in violation of Article 176 of the Chinese Criminal Code, allegedly committed between August 2012 and April 2014 through a British company operating in Beijing. The requested persons raised objections on both formal and substantive grounds, arguing inter alia that their surrender would violate the fundamental principles of Cypriot and European law, given the prevailing situation of torture and systemic human rights violations in Chinese detention facilities. The court found that the formal requirements of the bilateral Extradition Treaty of 29 June 2018 (ratified by Law 12(III)/2019) and the double criminality condition were satisfied, but concluded — relying extensively on the ECtHR judgment in Liu v. Poland (App. No. 37610/2018, 6.10.2022) and expert evidence — that a general situation of violence and torture exists in Chinese detention and penitentiary facilities, thereby relieving the requested persons of the obligation to demonstrate specific personal risk factors. The court further held that the diplomatic assurances provided by China through the bilateral channel were insufficient to eliminate the real risk of ill-treatment, and accordingly rejected the extradition request as mandatorily precluded under Article 3(d) and (θ) of the Treaty.

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 case concerned a request by the People’s Republic of China for the extradition of Sun Bocheng from Croatia for prosecution in relation to several alleged offences, including participation in a criminal organisation, fraud, forced trade, illegal gambling activities, and violent conflict-related offences. The County Court in Zagreb examined the statutory extradition requirements offence by offence. It found that some elements of the request, especially those concerning the alleged criminal organisation, were sufficiently described and could in principle satisfy requirements such as double criminality and absence of limitation. However, for several other offences the Court found that the Chinese request did not provide sufficiently individualized evidence to establish substantiated suspicion against the requested person. More importantly, the Court held that extradition to China would be incompatible with Croatia’s obligations under Articles 2, 3 and 6 of the European Convention on Human Rights. Relying also on the European Court of Human Rights’ case law, including Liu v. Poland, the Court considered the risks linked to the death penalty, inhuman or degrading treatment, and lack of fair trial guarantees. It therefore concluded that the legal conditions for extradition were not met and refused surrender to China.

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.

The case concerned a request by the People’s Republic of China for the extradition of QJ, a citizen of Saint Christopher and Nevis, for prosecution in China on allegations of large-scale embezzlement connected to his former position as chief financial officer of a state-owned company. The alleged conduct involved several transactions between 2008 and 2011, with an overall value of approximately 210 million yuan. The Swedish Supreme Court found that most of the alleged offences satisfied double criminality under Swedish law and that there was sufficient probable cause for the prosecution allegations. It also held, however, that extradition was barred on several human rights grounds. First, the Court found an impediment under Swedish extradition law because the requested person had been politically active in connection with demonstrations in Tiananmen Square and later in the Chinese democracy movement, and there was a risk that he would be persecuted on account of his political opinions. Secondly, the Court held that extradition to China would be incompatible with Articles 2, 3 and 6 of the European Convention on Human Rights. In particular, the Court relied on the risk of the death penalty, the general and individual risk of torture or inhuman treatment, the lack of sufficient guarantees of an independent and fair trial, and the limited value of possible assurances in light of the structure and functioning of the Chinese criminal justice system. The Supreme Court therefore declared that there were legal impediments to 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.