CYIL vol. 11 (2020)
MIROSLAV KUBÍČEK CYIL 11 (2020) to-police co-operation or it may follow receipt of provisional arrest request that can be communicated by the requesting party to the requested party through diplomatic channels or directly between Central Authorities (if there is a treaty providing for direct contact of Central Authorities). Domestic legislation in a number of states requires issuance of a certificate or authority to proceed before a person is provisionally arrested 109 which may provide additional safeguard. In many countries, however, no such mechanism exists (including, for example, the Czech Republic (Section 93 of the Act)). Nevertheless, custody for the purposes of extradition proceedings, when extradition is not based on treaty, is generally justified by ongoing extradition proceedings themselves and neither treaty basis nor the requesting party’s request for provisional arrest are necessary. According to Article 5(1)(f ) of the ECHR and relevant case law of the ECtHR, all that is required is that “action is being taken with a view to deportation or extradition” 110 and that the decision on custody is taken in accordance with domestic law (of the requested party) with possibility of effective remedy (judicial review; Article 13 of the ECHR) 111 . The ECHR does not require states to have in their domestic legislation strict time limit for the length of custody after they receive request for extradition – however, their authorities must conduct extradition proceedings with requisite diligence, otherwise the custody would cease to be justified 112 . Custody would not be justified also when it is clear that the person sought cannot be extradited 113 , which might apply also in cases of extradition sought for clearly political offences when it is, according to the treaty relied on by the requesting party, mandatory ground for refusal of extradition. Accordingly, none of the bilateral extradition agreements with Hong Kong stipulates obligation for the requested party to provisionally arrest the person sought and remand the person in custody. Provisions on provisional arrest found in these agreements 114 all refer to the requested party’s domestic law and leave the decision on provisional arrest (and custody) at the requested party’s authorities’ discretion. It follows that in case of suspension of the operation or termination of the bilateral extradition agreements with Hong Kong, it would not be possible to take the person context of the processing of information via INTERPOL’s channels is available online at https://www.interpol.int/ content/download/12626/file/article-3-ENG-february-2013.pdf). 109 This may include designation of the requesting party as “extradition country” or “extradition partner” (see above). 110 See, for example, Mokallal v. Ukraine , judgment of 10 November 2011, application No. 19246/10, para. 43, available online at http://hudoc.echr.coe.int/eng?i=001-107421. 111 See, for example, Khodzhayev v. Russia , judgment of 12 May 2010, application No. 52466/08, para. 138-139, available online at http://hudoc.echr.coe.int/eng?i=001-98621. 112 See, for example, Lynas v. Switzerland , decision of 6 October 1976, application No. 7317/75, p. 167, available online at http://hudoc.echr.coe.int/eng?i=001-74819, or Sanchez-Reisse v. Switzerland , judgment of 21 October 1986, application No. 9862/82, para. 57, available online at http://hudoc.echr.coe.int/eng?i=001-57571. 113 See, for example, Garabayev v. Russia , judgment of 7 June 2008, application No. 38411/02, para. 88, 89 and 94, available online at http://hudoc.echr.coe.int/eng?i=001-91447, or Eminbeyli v. Russia , judgment of 26 February 2009, application No. 42443/02, para. 48, available online at http://hudoc.echr.coe.int/eng?i=001-91447. 114 Australia – Article 12, Canada – Article 11, the Czech Republic – Article 12, Finland – Article 12, France – Article 12, Germany – Article 10, India – Article 10, Indonesia – Article 14, Ireland – Article 12, the Republic of Korea – Article 9, Malaysia – Article 8, the Netherlands – Article 9, New Zealand – Article 12, the Philippines – Article 11, Portugal – Article 13, Singapore – Article 12, South Africa – Article 13, Sri Lanka – Article 12, the UK – Article 9, the USA – Article 10.
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