On Oct. 6, 2022, the European Court of Human Rights issued a decision, Liu v. Poland, that effectively bars states under its jurisdiction from extraditing anyone to China.
Liu is a Taiwanese man who was wanted by China on charges that he was the ringleader of a vast international telecoms fraud syndicate. He was arrested in Poland in August 2017 pursuant to a Red Notice issued in December 2016. He did not claim to be a victim of political persecution, and Polish courts found that there was a high probability that he was guilty of the offenses charged. They therefore approved the prosecutor’s application for authorization to extradite.
The ECHR held that Liu could not be extradited. The standard it applied was “whether the person concerned, if extradited, would face a real risk of being subjected to treatment contrary to Article 3 of the Convention [Against Torture]” (para. 66). It then reviewed various reports about torture in China, both from the UN and from various NGOs such as Amnesty International.
The key element of the ECHR’s decision was this: it held that Liu did not need to show an individualized, particularized fear of torture. It was sufficiently convinced that merely being detained in China was per se sufficient to post “a real risk” of being tortured. Here’s the money quote:
Consequently, having regard to the parties’ submissions and to the above-mentioned reports issued by various United Nations bodies as well as by international and national governmental and non-governmental organisations, to which the Court attaches considerable weight . . . , it considers that 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 (see paragraph 79 above), may be equated to the existence of a general situation of violence. Thereby the applicant is relieved from showing specific personal grounds of fear, it being enough that it is established that, upon extradition, he will be placed in a detention centre or penitentiary . . . . Since it is uncontested that the applicant would be detained in China if the extradition order was implemented, the Court finds it established that the applicant would face a real risk of ill-treatment if extradited to that State.
This makes the job of those resisting extradition immensely easier. They no longer have to make any individualized showing; all they have to do now is to show that China has not substantially changed its management of detention facilities since the date of this decision. (Or maybe governments that wish to extradite will have the burden of showing that China has substantially changed; I don’t know where the burden lies.)
A few extra comments:
- The ECHR laid a lot of stress on the fact that the inadequacy of the information before it was largely due to China’s failure to cooperate with UN investigatory bodies. Thus, it seems that China’s failure to cooperate was not as cost-free as it might have thought at the time.
- The decision said nothing about whether China’s legal system delivered due process. This is one of the issues in the ongoing case of Kyung Yup Kim in New Zealand. Deciding the case on torture grounds allowed the court to avoid that question.
- The court appropriately dismissed as “unconvincing” the laughable claim made by the Chinese and Polish governments that China’s detention facilities were open to the public and journalists (para. 81). As the court stated, “In the light of information contained in reports issued by the [Convention Against Torture], it seems highly unlikely that members of the public or journalists would be allowed entry to a Chinese detention facility.”
Here’s a good (and much more extensive) analysis from Safeguard Defenders.