CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … The real question, however, is whether the agreements could in fact be abused for the purposes of prosecution of political opponents or dissidents for political offences under the NSL or for ordinary offences where the prosecution is politically motivated and whether these steps, i.e. suspension of the operation or even termination, were or are necessary to prevent such abuse. A. Safeguards in Bilateral Extradition Agreements The first set of safeguards against abuse of extradition for political persecution is contained within the extradition agreements themselves. Most prominent of these safeguards are the requirement of dual criminality, the rule of speciality and mandatory grounds for refusal. 1. The Requirement of Dual Criminality and the Rule of Speciality According to all of the bilateral extradition agreements with Hong Kong, a person may be sought and extradited only for offences that are punishable under the laws of both parties 34 . Dual criminality is examined by comparing the facts of the offence for which the person is sought by the requesting party with offences criminalized in the requested party. Domestic law of the requested party does not need to criminalize an offence of a similar name or even of a similar nature – it is sufficient that the facts would constitute an offence (any offence) under the law of the requested party 35 that is punishable under that law by at least the minimum sentence stipulated in the extradition agreement 36 . In addition to that, most of the agreements 37 require that the offence comes within at least one of the descriptions of offences on the list (enumerative clause) either contained in the article on extraditable offences (dual criminality) itself or in the annex to the agreement 38 . However, these lists of extraditable offences are not exhaustive, the last item on most of these lists 39 being a catch- all phrase covering any other offence extraditable under domestic laws of both parties. Exhaustive lists of extraditable offences are only in the agreements with Canada and Malaysia. The agreements with the Czech Republic and France contain general provisions (eliminative clauses) on extraditable offences (requiring dual criminality, minimum sentence imposable 34 Australia – Article 2(1), Canada – Article 2(1), the Czech Republic – Article 3(1)(a), Finland – Article 3(1), France – Article 2(1)(a), Germany – Article 2(1), India – Article 2(1), Indonesia – Article 2(1), Ireland – Article 2(1), the Republic of Korea – Article 2(1), Malaysia – Article 2(1), the Netherlands – Article 2(1), New Zealand – Article 2(1), the Philippines – Article 2(1), Portugal – Article 2(1), Singapore – Article 2(1), South Africa – Article 2(1), Sri Lanka – Article 2(1), the UK – Article 2(1), the USA – Article 2(1). 35 It is not necessary for the purposes of this article to examine details of dual criminality considerations, such as the concepts of in abstracto and in concreto dual criminality. Basic information on these concepts may be found, for example, in the Council of Europe document PC-OC (2012) 02 Final available online at http://rm.coe.int/ CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680075084. 36 More than one year of imprisonment in the agreements with Australia, Canada, the Czech Republic, Finland, France, Indonesia, the Republic of Korea, the Netherlands, the Philippines, Portugal, South Africa, Sri Lanka and the USA, at least one year of imprisonment in the agreements with Germany, India, Ireland, Malaysia, Singapore and the UK and at least two years of imprisonment in the agreement with New Zealand. 37 The agreements with Australia, Canada, Finland, Germany, India, Indonesia, Ireland, the Republic of Korea, Malaysia, the Netherlands, New Zealand, the Philippines, Portugal, Singapore, South Africa, Sri Lanka, the UK and the USA. 38 The agreements with Germany and the Republic of Korea. 39 The agreements with Australia, Finland, Germany, India, Indonesia, Ireland, the Republic of Korea, the Netherlands, New Zealand, the Philippines, Portugal, Singapore, South Africa (provided that South Africa and Hong Kong notify each other of such other offences), Sri Lanka, the UK and the USA.

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