CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … state that has bilateral extradition agreement with Hong Kong would burden this article disproportionately, this section uses as an example the extradition procedure of the Czech Republic (mainly Sections 87 through 104 of the Act No. 104/2013 of the Collection of Laws, on International Judicial Co-operation in Criminal Matters, as amended 65 (the Act)), a member state of both the Council of Europe and the European Union with relatively new domestic legislation in this area; for the sake of brevity, many details that are not relevant for the subject of this section are omitted. The most important of these safeguards is the division of extradition proceedings into judicial stage and political (administrative) stage. Such division (although often different in specific arrangement of sequence and exact role of these stages) can be found in most domestic legislations. In the Czech Republic, the judicial stage of extradition proceedings comes first and its purpose is to examine and decide whether there are any legal grounds for refusal (inadmissibility) of extradition 66 , both under the applicable extradition treaty (if the extradition is based on one), any other treaty (or customary rule of international law 67 ) and under domestic legislation (mainly Section 91 of the Act; however, other provisions of the Act might be also relevant – e.g. Section 5 on protection of the Czech Republic’s essential interests, under which ordre public exception is mandatory ground for refusal of international judicial co-operation and protection of other important interests of the Czech Republic is discretionary ground for refusal). Possible grounds for refusal are first examined in the preliminary inquiry by a prosecutor of a regional prosecutor’s office 68 (Section 92 of the Act). The prosecutor always interviews the person sought (often several times, before and after the request for extradition is received) and it is the prosecutor’s duty to gather and verify information necessary to decide on admissibility of the extradition (and to request, through the Ministry of Justice of the Czech Republic (the Ministry), additional information if necessary). The prosecutor submits the case to the regional court 69 with a motion to decide that the extradition is either admissible or inadmissible (based on the information gathered during the prosecutor’s preliminary inquiry). The court, in a public hearing (Section 95(1) of the Act), always interviews the person sought (the person sought is not interviewed under oath) and verifies the information gathered by the prosecutor. The court may also gather information not obtained by the prosecutor (or offered by the person sought) and may request (through the Ministry) additional information if necessary. At the end of the public hearing, the judges org/site/adboecdanti-corruptioninitiative/39368242.pdf, Sri Lanka – http://www.oecd.org/site/adboecdanti- corruptioninitiative/39984874.pdf) or other online sources (South Africa – http://www.derebus.org.za/does-sa- have-the-required-framework-for-mutual-legal-assistance-and-extradition/). 65 English translation is available online at https://www.unodc.org/res/cld/document/act-on-international-judicial- cooperation-in-criminal-matters_html/Act_104_2013_on_International_Judicial_Cooperation_oprava.pdf. 66 Sections 92(1) and 95(1) of the Act. 67 For example, prohibition of torture and cruel, inhuman or degrading treatment is recognized as customary (and ius cogens ) rule – see Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) , International Court of Justice, judgment of 20 July 2012, p. 39, available online at https://www.icj-cij.org/files/ case-related/144/144-20120720-JUD-01-00-EN.pdf. 68 Each regional prosecutor’s office in the Czech Republic has at least one prosecutor assigned to execute requests for international judicial co-operation. The purpose of this specialization is to concentrate experience and expertise. 69 Each regional court in the Czech Republic has at least one bench (of three professional judges) assigned to execute requests for international judicial co-operation. The purpose of this specialization is to concentrate experience and expertise.

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