CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … It is more probable that political opponents or dissidents might instead be falsely charged with and their extradition sought for ordinary offences. Therefore, the most important safeguards would, in practice, be mandatory grounds for refusal of extradition that can be found in all of the bilateral extradition agreements 44 . First of these mandatory grounds for refusal of extradition is the political offence (offence of political character) exception, which is nearly identical in all of the agreements. As noted above, most of the offences criminalized under the NSL would fall under this category and it is unlikely that extradition would be sought for such an offence. The possibility that political opponents or dissidents would be (falsely) charged with and their extradition sought for ordinary offences is expressly addressed in the second mandatory ground for refusal of extradition. According to all of the agreements, a person cannot be extradited if the requested party has reasons to believe that the request, though ostensibly made for an ordinary offence, is in fact made to persecute the person on account of race, religion, nationality or political opinions; some of the agreements also protect from persecution for additional reasons, such as colour 45 , ethnic origin 46 , language 47 , sex 48 , gender 49 and sexual orientation 50 . While examination of this ground for refusal may represent a challenge in extradition proceedings, it is, nevertheless, a regular feature of any extradition proceedings (and careful examination of various information relating to all possible grounds for refusal is one of the reasons for which extradition proceedings usually take considerable time). The main source of information that could lead the requested party to refuse extradition on this ground is, typically, the person sought. It is the duty of the requested party’s authorities to verify such information using information from independent sources (e.g. reports of intergovernmental organizations, nongovernmental organizations (NGOs) or third parties, information obtained from general consulates in Hong Kong or embassies in the PRC etc.) or from the requesting party and, if necessary, request additional (supplementary) information from the requesting party. Nearly all of the agreements 51 have express provisions on additional information, with possibility to set deadlines for their receipt; failure to meet such deadline may result in release of the person sought from custody in the requested party or even in refusal of extradition. Only the agreement with the USA lacks an express provision 44 Australia – Article 6(1), Canada – Article 5(1), the Czech Republic – Article 7(1), Finland – Article 6(1), France – Article 5(1), Germany – Article 5, India – Article 6(1), Indonesia – Article 7(1), Ireland – Article 5(1), the Republic of Korea – Article 5, Malaysia – Article 6(1), the Netherlands – Article 6, New Zealand – Article 6(1), the Philippines – Article 5(1), Portugal – Article 6(1), Singapore – Article 5(1), South Africa – Article 6(1), Sri Lanka – Article 6(1), the UK – Article 6(1), the USA – Article 6. 45 The agreements with Finland and New Zealand. 46 The agreements with Finland, Germany and New Zealand. 47 The agreement with Ireland. 48 The agreements with the Czech Republic, Finland, France, Germany, Ireland and New Zealand. 49 The agreement with South Africa. In light of the fact that the term “sex” is not used in the agreement, it seems likely that the term “gender” is used as synonym for “sex”. 50 The agreement with Ireland. 51 Australia – Article 13, Canada – Article 10, the Czech Republic – Article 10, Finland – Article 13, France – Article 11, Germany – Article 8(5), India – Article 8(5), Indonesia – Article 13, Ireland – Article 11, the Republic of Korea – Article 11, Malaysia – Article 9, the Netherlands – Article 8(5), New Zealand – Article 13, the Philippines – Article 12, Portugal – Article 12, Singapore – Article 11, South Africa – Article 12, Sri Lanka – Article 11, the UK – Article 10.


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