CYIL vol. 11 (2020)

MIROSLAV KUBÍČEK CYIL 11 (2020) on additional information but it is safe to assume that additional information would be requested if needed. According to most of the agreements (the only exception being the agreement with the Republic of Korea), extradition is also impossible if the person sought would, if extradited, be prejudiced in the requesting party at trial (only the agreement with the USA uses more strict expression “denied fair trial”) or otherwise punished by reason of race, religion, nationality, political opinions or for one of the additional reasons if the respective agreement mentions them in relation to the second mandatory ground for refusal (see above). Examination of this ground for refusal follows the same pattern as examination of the second mandatory ground for refusal. 3. Discretionary Grounds for Refusal of Extradition The bilateral agreements with Hong Kong further protect persons who are sought for extradition under them by (at least) two of the discretionary grounds for refusal of extradition. Discretionary nature of these grounds for refusal does not make them any less effective – it is solely for the requested party’s authorities to decide on their use. One of the discretionary grounds for refusal is that the extradition might violate the requested party’s obligation under other treaties 52 . In the agreement with the UK, this ground for refusal is even mandatory (Article 5(2)(c)). These other treaties may include, for example, extradition treaties with third states that prevent re-extradition if the person sought had been extradited from the third state to the requested party, mutual legal assistance treaties providing witness immunity to witnesses summoned from the third state to the requested party, treaties providing diplomatic or other similar immunities and privileges but also human rights treaties that prohibit extradition if the person sought would, for example, face real risk of torture or cruel, inhuman or degrading treatment or would be denied fair trial in the requesting party (see below). The agreements with France (Article 6(2)), Malaysia (Article 19(2)) and Singapore (Article 6(2)) refer (in case of France and Singapore in addition to this discretionary ground for refusal) to the possibility that the extradition would significantly affect interests of the requested party (or, if the requested party is Hong Kong, the PRC) in matters of defence or foreign affairs (the agreements with France and Singapore) or in matters of national security or public order (the agreement with Malaysia, as amended by the 2006 Protocol). Interests of the requested party in matters of foreign affairs or public order could reasonably include observance of other treaties that bind the requested party. In practice, this discretionary ground for refusal would most likely operate as a mandatory ground – by refusing extradition, the requested party would violate neither the bilateral extradition agreement nor any other treaty. The agreement with South Africa (Article 6(2) d) and (e)) instead refers to the risk that the person sought, if extradited, would not receive fair trial in the requesting party in accordance with the minimum guarantees provided for in Article 14 of the International Covenant on Civil and Political Rights (or did not receive such fair trial if already convicted) or would face torture or cruel, inhuman or degrading treatment. Both these rights (right to fair trial and right to protection from torture and cruel, 52 Australia – Article 7(d), the Czech Republic – Article 7(3)(d), Finland – Article 7(1)(c), France – Article 6(1)(b), Germany – Article 7(2)3, Indonesia – Article 8(b), Ireland – Article 6(c), the Netherlands – Article 7(c), New Zealand – Article 7(1)(c), the Philippines – Article 6(1)(c), Portugal – Article 7(d), Singapore – Article 6(3), Sri Lanka – Article 7(d).

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