CYIL vol. 11 (2020)

CYIL 11 (2020) UNPOPULAR OPINION: THE IMPORTANCE OF BILATERAL EXTRADITION … international instruments that, at least under certain conditions, expressly allow extradition of asylum-seekers, such as Article 9(2) and (3) of the Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. Regardless, pending asylum proceedings in practice present major obstacle to extradition proceedings and, at the very least, tend to significantly prolong them. There is no doubt that once the person sought receives asylum (or supplementary protection), non-refoulement obligation prevents extradition to the state with regard to which asylum (or supplementary protection) was granted. This safeguard is, of course, not available to nationals of the requested party but the issue of extradition of nationals is addressed in different manner Another important safeguard, although available only in those states that are party to the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), is application to the ECtHR. Of the states that signed bilateral extradition agreements with Hong Kong, parties to the ECHR are the Czech Republic, Finland, France, Germany, Ireland, the Netherlands, Portugal and the UK. The ECtHR’s jurisdiction is limited to (alleged) breaches of the ECHR. In context of extradition, the most important provisions of the ECHR are those concerning the absolute prohibition of torture and cruel, inhuman or degrading treatment (Article 3), fair trial 80 (Article 6) and custody in extradition proceedings (Article 5(1)(f )). Examination of real risks of violation of Articles 3 and 6 follows the same pattern as examination of the above-mentioned grounds for refusal (in practice, real risk of treatment contrary to Articles 3 or 6 of the ECHR in the requesting party would constitute another mandatory ground for refusal of extradition). Case law of the ECtHR in the area of extradition (and, with regard to Article 3 of the ECHR, also in the area of expulsion) 81 is a rich source of guidance for prosecutors, judges and other authorities as well as for legal counsels on proper application of the ECHR in extradition matters. Even though the ECtHR itself cannot overturn domestic decisions but may only state whether and what provisions of the ECHR domestic decisions violate (and, if so, grant satisfaction under Article 41 of the ECHR), parties to the ECHR nevertheless have obligation to comply with them (Article 46(1) of the ECHR); compliance is monitored by the ECtHR which can 80 According to the ECtHR’s case law, not every breach of the right to fair trial in the requesting party means that the person sought cannot be extradited. Extradition would be in breach of Article 6 of the ECHR only if the person sought faced real risk of flagrant denial of justice in the requesting party. The threshold required to activate Article 6 of the ECHR in extradition context is relatively high. See, for example, Othman (Abu Qatada) v. United Kingdom , judgment of 17 January 2012, application No. 8139/09, para. 259-261 and 282, available online at http://hudoc.echr.coe.int/eng?i=001-108629. It seems safe to assume that, for example, the practice of forced confessions, reportedly widespread and persistent in the PRC (see, for example, No End in Sight: Torture and Forced Confessions in China (London: Amnesty International Publication, 2015), available online at https:// www.amnesty.org/download/Documents/ASA1727302015ENGLISH.PDF, or MEYERS, S. L., How China Uses Forced Confessions as Propaganda Tool (New York: The New York Times, 2018), available online at https:// www.nytimes.com/2018/04/11/world/asia/china-forced-confessions-propaganda.html), although not specifically addressed by a final judgment of the ECtHR yet, might well be considered such flagrant denial of justice. 81 For summaries of relevant case law, see the Council of Europe’s document PC-OC(2011)21REV13, available online at https://rm.coe.int/pc-oc-2011-21rev13caselawecthr-january2020/16809a4674. The document is updated annually. in the agreements themselves (see above). 2. European Court of Human Rights

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