CYIL vol. 11 (2020)

MIROSLAV KUBÍČEK CYIL 11 (2020) party’s request. Only the agreements with India, Singapore and the USA contain no such ground for refusal. The issue of extradition of nationals is addressed in all of the agreements. Most of the agreements 60 give the requested party right to refuse extradition of its nationals 61 . The agreement with Canada (Article 3), however, gives this right only to Hong Kong. According to some of the agreements 62 , the requesting party has, if this ground for refusal is applied, the right to request that the requested party’s authorities consider prosecuting the person for the offence (provided, of course, that the condition of dual criminality is met) and according to one of the agreements 63 , the requested party has an obligation to do so even without the requesting party’s request. Provisions on extradition of nationals in the agreements with the UK and the USA (Article 3 in both agreements) are a little more complicated – the general rule is that extradition shall not be refused on the grounds of nationality but there are exceptions in cases in which the extradition would relate to defence, foreign affairs, essential public interests or policy of the requested party (or, when the requested party is Hong Kong, of the PRC). According to both agreements, the requesting party has, if this ground for refusal is applied, the right to request that the requested party’s authorities consider prosecuting the person for the offence (provided, of course, that the condition of dual criminality is met). B. Procedural Safeguards in Domestic Legislation Another set of safeguards can be found in extradition laws. Typically, grounds for refusal of extradition stipulated in domestic legislation largely overlap those contained in extradition treaties (in this regard, treaties and domestic legislation influence each other in both directions – treaties, especially bilateral ones, tend to be drafted by states to more or less follow their domestic legislation and, if not, states need to adapt their domestic legislation). This section, therefore, deals only with procedural safeguards found in domestic legislation that are not based on treaty obligations. Because domestic procedural laws differ substantially from state to state 64 and description of procedural safeguards in domestic legislation of each 60 Australia – Article 3(1), the Czech Republic – Article 4, Finland – Article 3(1), France – Article 3(1), Germany – Article 3(1), India – Article 4(1), Indonesia – Article 4(1), Ireland – Article 3(1), the Republic of Korea – Article 3(1), Malaysia – Article 3(1), the Netherlands – Article 3, New Zealand – Article 3(1), the Philippines – Article 3(1), Portugal – Article 3, Singapore – Article 3(1), South Africa – Article 3 and Sri Lanka – Article 3 61 When the requested party is Hong Kong, the term “nationals” means all nationals of the PRC. 62 The agreements with Australia, Canada, Finland, France, Germany, India, Ireland, the Republic of Korea, Malaysia, New Zealand, the Philippines and Singapore. 63 The agreement with Indonesia. 64 Basic outlines of extradition procedures in European and certain other states (including the Republic of Korea) in English can be found at the website of the Council of Europe’s Committee of Experts on the Operation of European Conventions on Co-operation in Criminal Matters – https://www.coe.int/en/web/ transnational-criminal-justice-pcoc/extradition-country-information. Outlines of extradition procedures in other states in English can be found either at the websites of their competent authorities (Australia – https:// www.ag.gov.au/international-relations/international-crime-cooperation-arrangements/extradition, Canada – https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html, India – https://www.mea.gov.in/extradition- faq.htm, Indonesia – https://portal.ahu.go.id/uploads/_uploads/dl/PP_UU/Dit.HIOP/Extradition%20in% 0Indonesia%20legislation%20and%20procedure.pdf,NewZealand–https://www.crownlaw.govt.nz/assistance -for-foreign-authorities/extradition/, Singapore – https://www.agc.gov.sg/our-roles/international-law-advisor/ extradition, the USA – https://www.justice.gov/jm/jm-9-15000-international-extradition-and-related-matters) or, for example, at the website of the Organisation for Economic Co-operation and Development (Malaysia – https://www.oecd.org/site/adboecdanti-corruptioninitiative/39984984.pdf, the Philippines – http://www.oecd.

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