China's extradition battles: human rights in European courts

"[W]e should punish corrupt officials with zero tolerance. We should bring them to justice even if they flee to the farthest parts of the earth. We should never let them hide in the ‘safe haven’ at large."

This message from Chinese Communist Party Secretary General Xi Jinping (2014) provides the background for China’s global law enforcement drive. Labelled ‘Fox Hunt’ and ‘Sky Net’, China (Party-State) has embarked on a massive search for fugitives which has brought confrontation over basic principles such as the rule of law and human rights to European court rooms.

In the last decade, China has developed a comprehensive toolbox of instruments aimed to facilitate criminal justice cooperation with European countries in a context where the latter had become the preferred destination for individuals seeking refuge outside China. First, transnational police cooperation using Interpol Red Notices does constitute a major instrument used by China to help locate individuals subject to an arrest warrant. To facilitate the repatriation of individuals, China has also pursued the conclusion of bilateral extradition agreements. At the time of writing, ten EU countries (ie Belgium, Bulgaria, Cyprus, France, Greece, Italy, Lithuania, Portugal, Romania, and Spain) have ratified extradition agreements with the PRC.

In sharp contrast to the vivacity of the political debate that took place in countries such as Australia or Canada, many of those agreements involving European states remained largely unnoticed. They were in fact part of a greater package of bilateral agreements and commercial contracts aimed to strengthen the economic interdependence with China.

In addition to providing European countries with some diplomatic leverage in their relationship with China, there was also some hope the adoption of extradition agreements would help improve procedural and substantive rights in the Chinese criminal justice system.

Third, the Party-State keeps using extra-judicial means to expand its control of individuals based outside the territory of the PRC. Officially coined ‘persuasion to return’ (quan fan), direct or indirect pressure is being exercised on individual fugitives with the aim of ‘persuading’ them to return to China. This informal mechanism is part of a greater trend of transnational expansion of Party-State control and repression by adopting a regime of extraterritorial jurisdiction. It is facilitated, in practice, by the establishment of underground police stations across Europe, including the United Kingdom.

Against the background of rising geopolitical tensions and following the international outcry against the adoption of the Hong Kong National Security Law, the relationship between Europe and China in criminal justice has become increasingly confrontational. At the political level, the European Parliament has called EU Member States which continue to have an extradition agreement with the PRC ‘to suspend individual extraditions’.

This confrontation, however, is not without any ambiguities as best exemplified by the European Union’s China policy that still describes China simultaneously as ‘a partner for cooperation and negotiation’, ‘economic competitor’, as well as a ‘systemic rival’.

While economic interdependence with the PRC calls for constructive cooperation to address common challenges (including the fight against transnational crimes), the perception of China as a threat increasingly justifies an agenda informed primarily by the protection of national security. Most importantly, this growing polarisation finds its source in an institutional and normative crisis of the international legal order with values such as human rights and the rule of law being increasingly contested.

Interestingly, confrontations on the rule of law and human rights related issues in the area of criminal justice are now no longer taking place only in the context of political arenas but have also been brought to court rooms in a number of European countries. In the context of Europe-China relations,  there is a growing body of case law in states parties to the European Convention for Human Rights (i.e. Sweden, Czech Republic, Poland, Cyprus, Italy), which have highlighted how decisions to extradite an individual may be in contradiction with basic ECHR principles such as the right to life (Article 2), the prohibition of torture (Article 3), as well as the right to a fair trial (Article 6).

States are indeed under a legal obligation to ensure that individuals subject to an extradition request are not exposed to serious human rights violations should the extradition request be granted.

In these cases, diplomatic assurances submitted by China have not been deemed sufficient to alleviate existing human rights concerns. According to the Extradition Law of the PRC (2000), diplomatic assurances concerning restriction on prosecution are subject to a decision by the Supreme People's Procuratorate while assurances relating to criminal penalty are subject to a decision by the Supreme People's Court (Article 50).

On fair trial, the structural deficiencies of the Chinese criminal justice system can hardly be addressed by diplomatic assurances. Judicial dependency towards CCP/state organs; the limited existence of presumption of innocence; the absence of equality of arms with the severe limitations to the rights of defence and defence lawyers; as well as the prolonged use of pre-trial detention without any judicial oversights are among the many challenges faced in the Chinese criminal justice system. On torture, diplomatic assurances can hardly be reliable not least considering the lack of transparency that characterises law enforcement and criminal justice in the Chinese context.

Despite the statutory prohibition of the use of torture to extort confessions or obtain evidence (Article 52 China Criminal Procedure Law), Chinese law does not cover the use of mental torture; use of torture to extort confession remains widespread; and cases of ‘white’ torture (leaving few traces) remain well-documented.  

Finally, courts have grappled with the challenge of effectively monitoring assurances should the extradition request be granted. Here again, access to China’s detention and prison facilities remains limited and court hearings in cases deemed ‘sensitive’ are hardly open to external parties.

In a recent landmark ruling (Liu v. Poland), the European Court for Human Rights provided that credible and consistent reports of torture and ill-treatment in Chinese detention facilities and penitentiaries could be equated to ‘the existence of a general situation of violence’ (Para 83). This ruling has the potential to be a game changer as it means there is no longer a need, according to the Court, to justify the existence of specific risks of torture and ill-treatment in the context of extradition proceedings involving China.

Ultimately, it can be argued that the changing geopolitical context, combined with the growing body of case law denying extradition requests, is likely to have a lasting impact on the prospects for effective criminal justice cooperation between Europe and China.

The implications are major at a time where extradition procedures do constitute an effective instrument to fight against transnational crimes as well as often the only way for victims to ensure suspected criminals who have fled their country are brought to justice. Confrontations on human rights and the rule of law only reinforce pre-existing tensions between the effective implementation of criminal law and the need to ensure human rights are respected in criminal proceedings. In practice, official channels of judicial cooperation are likely to be replaced by a greater use by China of illegal channels and coercive means, such as ‘persuasion to return’.  

Dr. Matthieu Burnay is a reader in Global Law at Queen Mary University of London