The process of extradition, which involves the forced relocation of an individual from one legal jurisdiction to another, is governed by a comprehensive and diverse set of rules that address both procedural and substantive aspects. Various issues may arise from this process, particularly when an individual is extradited to a country with poor human rights records. Because of China’s persistent pursuit of its political opponents, members of ethnic minority groups, and the lack of transparency in its legal process, extraditions of individuals to China have come under scrutiny from the international community.
Chinese Extradition Law
In general, the wording of extradition laws align with the international standards outlined in the Model Treaty on Extradition. For instance, article 7 of China’s Extradition Law states that the extradition request from a foreign country to China can only be approved if actions mentioned in the extradition request are considered criminal offenses under the laws of both China and the requesting country. Article 3 and 15 focus on the matter of reciprocity between States, with Article 3 emphasizing cooperation based on the principles of “equality and reciprocity.” Article 15 stipulates that in cases where an extradition treaty is not applicable, the requesting state must provide an assurance of mutual cooperation.
However, in recent years, China has utilized the language of mutual cooperation as a tool to target political opponents and forcefully repatriate them through the extradition process. Since 2020, there have been 22 documented instances of extradition to China occurring in Europe. Two of these cases have been brought before the European Court of the Human Rights (ECHR), namely M.A and Others v. Bulgaria and Lui v Poland.
ECtHR and extraditions to China
M.A and Others v. Bulgaria pertains to the proposed extradition of five individuals of Uighur origin to China on the grounds of national security. Allegedly, these individuals were associated with the East Turkestan Islamic Movement, which China considers a terrorist organization (para. 36).
Regarding the alleged security concerns, the Bulgarian Ministry of Foreign Affairs, in a document specifically prepared for the proceedings, referred to the “radicalization” of Uighurs. This “radicalization” was, according to the document, perceived as one of the most significant national security threats to China, and the Chinese government actively sought the repatriation of all Uighurs who have illegally departed the country (para 46).
Conversely, the applicants expressed concerns regarding the possibility of persecution, arbitrary detention, mistreatment or even execution, if the extradition were to be approved. Their arguments were based on Article 2 and 3 of the European Convention on Human Rights, which stipulate that no one shall be deliberately deprived of their life (Article 2) and that acts of “torture, inhuman or degrading treatment or punishment” are prohibited (Article 3).
During its analysis, the ECtHR relied on numerous reports from governments and international non-governmental organizations, which specifically addressed the human rights situation in the Xinjiang region. For instance, the United Kingdom Government Report highlighted that, in May 2014, China initiated a “Strike Hard Campaign against Violent Terrorism” in Xinjiang, which targeted individuals deemed to pose a threat to “state security, ethnic unity and social stability” (para. 47). Similarly, a report by Human Rights Watch echoed these concerns, emphasizing that the Chinese government consistently urges foreign governments and other entities to designate Uighur organizations and individuals as terrorists (para. 53).
Taking into account the third-party reports that were presented, the ECtHR acknowledged the existence of human rights violations against Uighurs, along with the utilization of “re-education’’ facilities that did not adhere to proper legal procedures (para. 73). Additionally, it reached the conclusion that there were significant reasons to believe that if the applicants were to be extradited to a country of origin, they would be subjected to the threat of arbitrary detention, imprisonment, and potential mistreatment—or even death (para. 77). Therefore, it was ruled that extraditing the applicants to China would constitute a violation of Article 2 and 3 of the ECHR, thus infringing upon the applicants’ rights to life and the prohibition of torture.
In the case of Liu v Poland, a Taiwanese individual was detained in Poland after an Interpol Red Notice was issued based on an international investigation conducted by China and Spain into a telecom fraud syndicate. Subsequently, in September 2017, Chinese authorities filed an extradition request (para. 8).
Referring to Article 3 of the ECHR, the applicant raised a complaint stating that his extradition would violate the prohibition of torture and inhuman treatment (para. 45). It acknowledged that the Polish government had only informal assurances from the Chinese authorities regarding the respects for the applicant’s human rights. The ECtHR highlighted that formal diplomatic assurances that would allow it to assess the effectiveness of providing adequate guarantees against the risks of mistreatment were not pursued (para. 82). As the ECtHR examined the possibility of a general situation of violence, the judgment also built on the various reports from non-governmental and inter-governmental organizations discussing the human rights situation in China. As a result, the ECtHR held that a general situation of violence exists within the Chinese system, and the extradition of the applicant would violate article 3 of the Convention (paras. 81-84). Furthermore, it was stated that Article 5(1), which guarantees the right to liberty and security, was also violated due to the unlawful detention resulting from “unjustified delays in the proceedings” (para. 104).
Consequences of the Court’s ruling
This case marked the ECtHR’s first encounter with an applicant who did not belong to a recognized vulnerable group exposed to risks of mistreatment, such as politically targeted dissidents, Uighurs, or Falun Gong practitioners. It is important to note that the applicant’s claim that his Taiwanese nationality classified him as a member of a vulnerable group was rejected by both the Polish courts as well as the ECtHR.
By applying the principle of non-refoulement, which stipulates that no one should be returned to a country where they would be subjected to “torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm,” the decision can be viewed as a basis for the ongoing extradition cases across the European Union members states. Since the beginning of 2023, there have been seven cases involving extraditions from member states, with four being denied, two pending, and one approved. Furthermore, the gravity of extraditions has been acknowledged by the European Parliament, which, in June, voted in favor of a resolution urging all member states to revoke their extradition agreements with China.
Implications of ECtHR’s decisions on extradition cases
However, extradition of individuals is not the only tool employed by China to pursue their opponents and target members of ethnic minorities. Increasingly, there have been attempts to circumvent the decision of the ECHR through the misuse of Interpol’s red notices. Mariam Kiparoidze points out that while red notices can serve as an effective means of combating crime, concerns have arisen due to their repeated misuse for the forcible extradition of individuals. Furthermore, amidst these circumstances, the regime has also established what are known as “overseas police stations”, allegedly designed to provide a platform for assisting Chinese citizens living abroad in the renewal of official documents, such as driving licenses. Nevertheless, as the investigation conducted by Safeguard Defenders has revealed, these police stations are actively deployed to exert pressure on these citizens to return back to China (p. 26). This not only poses a significant danger to opponents of the Chinese Communist Party but also undermines the democratic world order, as China actively seeks to extend its jurisdiction beyond its borders (p. 4). It is important to emphasize that, from a legal standpoint, establishing overseas police stations without the consent of a territorial state represents a flagrant violation of international norms, notably the 1963 Vienna Convention on Consular Relations. Addressing this exploitation necessitates further international collaboration to ensure the protection of individuals as well as the democratic world order.
Cover photo: Wikimedia / Alfredovic
