CYIL vol. 11 (2020)

MIROSLAV KUBÍČEK CYIL 11 (2020) and extraditability under domestic laws of both parties); parties to these agreements have obligation to exchange lists of offences that would, under their law, meet the conditions of the eliminative clause but these lists are only informative (omission of an offence from such list does not per se constitute a ground for refusal of extradition). Of the offences criminalized by the NSL, only the offence of terrorist activities could generally meet the dual criminality requirement (depending on the description of the facts of the offence for which extradition would be sought). The possibility of persecution of political opponents or dissidents through prosecution for ordinary offences is discussed below. According to the rule of speciality, also contained in all of the bilateral extradition agreements with Hong Kong 40 , a person who was extradited cannot be proceeded against (prosecuted, tried etc.), sentenced, detained or subjected to any other restriction of personal liberty in the requesting party for any other offence committed prior to the person’s extradition than those in respect of which the extradition was granted by the requested party unless the requested party consents to it (i.e. grants extradition also for such other offence) or the facts of the other offence are substantially those for which the extradition was granted (i.e. the facts of the offence for which the extradition was granted were re-qualified as either a different offence or by adding the new legal qualification to the list of charges in case of concurrence of offences) and the other offence is extraditable under the bilateral extradition agreement and the maximum sentence for the other offence is the same or less severe than the maximum sentence for the offence for which extradition was granted. The protection by the rule of speciality lasts for the whole time the extradited person is detained (which includes not only custody and imprisonment but also any other legal impediments to that person leaving the requested party, such as house arrest, bail, order not to leave the territory etc.) in the requesting party. Afterwards, it protects the person for certain number of days 41 in which the person must be (legally) free to leave the requesting party (unless the person leaves the requesting party and returns to it). The rule of speciality protects the person also from re-extradition (further extradition from the requesting party to a third party); re-extradition is either covered by the same article of the bilateral extradition agreement as the rule of However, it is unlikely that Hong Kong (or the PRC) authorities would openly seek extradition of political opponents or dissidents for anti-government activities, as they are well aware of the requirement of dual criminality and protection afforded by the rule of speciality. 40 Australia – Article 18, Canada – Article 17, the Czech Republic – Article 17, Finland – Article 18, France – Article 17, Germany – Article 16, India – Article 16, Indonesia – Article 19, Ireland – Article 17, the Republic of Korea – Article 16, Malaysia – Article 17, the Netherlands – Article 16, New Zealand – Article 18, the Philippines – Article 17, Portugal – Article 18, Singapore – Article 17, South Africa – Article 18, Sri Lanka – Article 17, the UK – Article 17, the USA – Article 16. 41 Australia – 40, Canada – 40, the Czech Republic – 40, Finland – 45, France – 40, Germany – 40, India – 45, Indonesia – 45, Ireland – 45, the Republic of Korea – 40, Malaysia – 40, the Netherlands – 40, New Zealand – 40, the Philippines – 45, Portugal – 40, Singapore – 40, South Africa – 40, Sri Lanka – 45, the UK – 40, the USA – 30. 42 The agreements with the Czech Republic, Germany, India, Indonesia, Ireland, the Netherlands, Portugal, Singapore, South Africa, Sri Lanka and the USA. 43 The agreements with Australia, Canada, Finland, France, the Republic of Korea, Malaysia, New Zealand, the Philippines and the UK. speciality itself 42 or in the immediately following article 43 . 2. Mandatory Grounds for Refusal of Extradition


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