Liu v. Poland: A Game Changer for the Extradition Agendas of Autocracies (like China)?

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The case of Mr. Hung Tao LIU, one of the many Taiwanese suspects arrested in Europe for cross-border telecom fraud, has once again put Chinese human rights conditions under the international spotlight.

By a judgment issued on 6 October 2022, Liu v. Poland, no. 37610/18, the First Section of the European Court of Human Rights (ECtHR) established—for the very first time—a general standard for national tribunals to evaluate future extradition requests from the People’s Republic of China (China) in applying the non-refoulement principle, i.e., whether there are substantial grounds for believing that the returned individual(s) would be at “real risk” of ill-treatment prohibited by Art. 3 of the European Convention on Human Rights (ECHR). The Court decided in Liu’s favor, finding that his extradition to China would constitute a violation of Art. 3 of ECHR. Additionally, the Court determined that Liu’s detention in Poland pending extradition was unnecessarily lengthy and therefore arbitrary. For the violation of Art. 5(1), Poland must compensate Liu for his non-pecuniary damage.   

While the judgment is yet to be finalized (as per Art. 44(2) of the ECHR), the Court’s careful reasoning and the absence of dissenting opinions suggest a high likelihood that the decision will be finalized without significant revision. This potential precedent would not only deal a blow to China’s human rights reputation but also set up a more stringent standard for examining extradition requests from countries unwilling to present credible domestic human rights information.

Background: Sino-Taiwanese Cross-Border Telecom Fraud

For years, rampant telecom fraud schemes led by mainly Taiwanese syndicates have victimized numerous people in Taiwan and China. Efforts of the two governments to combat these transborder scammer syndicates have forced them to relocate their criminal operations to third countries. As a result, China has strengthened its intelligence cooperation with multiple countries where these syndicates operate.

The fact that Taiwanese suspects are caught up in telecom fraud allegations in third countries is nothing new. Their extradition was once a subject of rather judicious cooperation between Beijing and Taipei. Under a 2009 agreement signed by the Chinese Communist Party government and Taiwan’s Kuomintang government on “joint crime-fighting and mutual judicial assistance,” Beijing was willing to work with Taipei to send Taiwanese criminal suspects apprehended in third countries back to Taiwan for trial.

The present situation, however, is complicated by the increasingly acrimonious China-Taiwan relationship since the 2016 (and 2020 as well) election in Taiwan of a new Democratic Progressive Party-led government and legislature, disliked by China for the party’s “pro-independence” inclinations. Beijing has been unwilling to collaborate with Taiwan’s law enforcement and is eager to extradite Taiwanese suspects to China not only for severe punishment but also to advance its assertion that Taiwan is part of China. It has, as a result, portended a tug-of-war over the extradition of Taiwanese suspects, in Europe and beyond. China is often successful because of Taiwan’s limited diplomatic ties with third countries. In many cases, the Taiwan side challenges extradition to China on the grounds that Taiwanese suspects will be subject to a legal system rife with documented human rights abuses, but these claims often fall on deaf ears.

Taiwan’s insistence that these “suspects” be repatriated to Taiwan is not without good cause. A good number of people involved in these criminal schemes are themselves victims of human trafficking. They are often ensnared by deceptive job scams — beaten, detained, or even killed if they do not follow the dictates of these fraud rings. Cooperation from third countries is required to send Taiwanese suspects and potential human trafficking victims back to Taiwan in order to precisely identify and apprehend the masterminds of these fraud/trafficking rings and eliminate their associated criminal bases within Taiwan.

The ECtHR’s Views on Removal to China before Liu

Liu v. Poland is not the first time that the ECtHR has been confronted with controversial extraditions to China. But it is the first case in which the Court faced an applicant who could not be classified as a member of an identified vulnerable group subject to real risks of ill-treatment, such as suspects of a crime punishable by the death penalty, targeted political dissidents, Uyghurs or Falun Gong practitioners. Neither the Polish courts nor the ECtHR accepted the applicant’s argument that his Taiwanese nationality, itself, classified him as a member of a vulnerable group.

In Y v. Russia, no. 20113/07, for example, a complaint was lodged against Russia by two Falun Gong practitioners against Moscow’s decision on their deportation to China. The ECtHR, while recognizing Falun Gong practitioners were under a threat of persecution according to a variety of reports produced by NGOs and other countries, emphasized the necessity of individualized assessment in each case and ultimately found that Russian authorities had not breached Article 3 of ECHR. In other words, Y v. Russia suggested that beyond citing reliable third-party reports on the general situation of a specific group in question, the applicant still needs to adduce coherent evidence to be identified as a member of that targeted community and to convince the Court that repatriation to China would expose her/him to a real risk of ill-treatment.

The approach has been followed and developed by two separate ECtHR decisions regarding the refoulement of Uyghurs. All applicants in A.D. and Others v. Türkiye, no. 22681/09, and M.A. and Others v. Bulgaria, no. 5115/18, were Uyghurs whom China alleged to be listed as adherents to the East Turkistan Islamic Movement (ETIM), an alleged terrorist organization. Both judgments cited third-party reports, plausibly submitted by the applicants, on the general situation of Uyghurs in China.

In the Turkish case, however, the Court did not explicitly rely upon these materials for its “real risk” test. Instead, it focused on the irregularities in the competent authorities’ assessment procedures, warning that decisions to grant international protection to a foreigner could not be overridden by concerns probably “motivated by a desire to maintain good international relations or other political interests” (para. 101), implicitly criticizing the preferences of Turkish diplomats to cater to China.

Later in the Bulgarian case, the ECtHR finally came to explicitly register China’s human rights violations against Uyghurs and the existence of “re-education camps,” “where instances of ill-treatment and torture of the detainees have been reported” (para. 73) based on third-party materials, including the Committee on the Elimination of Racial Discrimination 2018 concluding observations on China. The Court then requested “effective guarantees” that the removal of the applicants from the defendant State would not lead to deportation to China (para. 83). Nevertheless, the Court did not have the opportunity in either of the above-cited cases to comprehensively evaluate the widespread ill-treatment of ordinary criminal suspects in China’s political-legal system.

Liu v. Poland and its Practical Consequences

As both the ECtHR and Polish Supreme Court, no. II KK 154/19, observed, Liu could not be considered a member of any vulnerable group in China. The aforementioned approach did not then apply to a Taiwanese, such as Liu, without any recognized political, religious, or ethnic association. Moreover, to the defendant State Poland, the Chinese authorities had presented documents and guarantees (rather than formal diplomatic assurances) to promise the absence of ill-treatment in “detention centres… open to the public” (paras. 61-62). On the other hand, for Liu, all he could provide to prove his risk of ill-treatment were multiple third-party reports — albeit reliable and extensive — on the notorious conditions of detention and criminal procedures without due process (paras. 34-44).

In the Court’s view, forlorn efforts to retrieve detailed, credible information from the Chinese government constituted the primary reason Liu remained unable to provide any evidence suggesting a real individualized estimation of risk. The ECtHR highlighted the absence of any meaningful international supervision of Chinese detention conditions due to the lack of access allowed by the government. It then went further to address the Chinese State’s obligations of preventing any forms of ill-treatment. Although only a signatory of the International Covenant on Civil and Political Rights (ICCPR), China is a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). China nevertheless refuses to consent to the CAT’s monitoring mechanisms of individual petition and on-site visit.

China’s denial of independent investigations is notorious. On the rare occasion that they are allowed, they are strictly controlled. With regards to torture, the last and only on-site visit to Chinese detention facilities was undertaken by the United Nations Special Rapporteur on Torture in 2005, Professor Manfred Nowak, who followed his visit with the publication of a thorough report replete with extensive criticisms. This apparently displeased China, and, subsequently, China’s door has been largely shut for any further investigations that, in Beijing’s view, may damage its reputation. Facing such a closed door, the ECtHR cannot but attach “considerable weight” to the “reports issued by various United Nations bodies as well as by international and national governmental and non-governmental organisations” and “considers that the extent to which torture and other forms of ill-treatment are credibly and consistently reported to be used in Chinese detention facilities and penitentiaries…, may be equated to the existence of a general situation of violence.” (para. 83.)

The potential implications of the Court’s reasoning in Liu are significant. Firstly, the Court invites the national judges, under such circumstances, to relieve the criminal suspect pending extradition of a difficult—if not impossible—burden of proof for individualized estimation of risk. After all, it should only be fair that the price of government denial of access and credible information should be borne by the requesting government itself. Secondly, without requiring States parties “to impose Convention standards on other States” (para. 80), the ECtHR may have set up seminal case law that urges European countries to reconsider their judicial cooperation with China and other States in a similar “general situation of violence” and little transparency therein.

Our Views and Concluding Remarks

In international forums, China has traditionally adopted a defensive posture anchored on the principle of sovereignty and non-intervention with “internal affairs.” Since 2012, Xi Jinping’s “New Era” has advanced a concomitant, more proactive approach that promotes “human rights with Chinese characteristics” on the international stage. This approach preconizes, among others, intergovernmental dialogue and cooperation in place of vigorous international monitoring and muzzles the voices of independent domestic and international civil society members to reduce criticisms against Beijing. The embodiment of this particular Chinese approach has real human costs—they included, to name a few, the large-scale 709 crackdowns on lawyers and activists since 2015, the “re-education camps” in Xinjiang, and the 2020 National Security Law imposed on Hong Kong (of which the ICCPR Committee called for repeal in its recently-concluded review).

Therefore, the ECtHR had good reasons to invite national authorities to pay special attention to the Chinese “apparently limited cooperation… with international human rights’ protection bodies” (para. 74). China’s refusal to engage with international human rights monitoring mechanisms appears to be the key to relieving the applicant’s burden of proof. The Court did not simply reaffirm that “the benefit of doubt should be granted to an individual seeking protection” where there are abundant allegations of serious abuses identified in independent and credible sources (para. 80). It went further to seek guarantees of protection, including any subsidiary international mechanism, of an extradited individual in countries of destination. It is noteworthy that the Court’s explicitly referred to observations of international institutions, wherein they clearly indicate a systemic failure in China’s protection against ill-treatment in its criminal justice system (para. 79). The Court’s conclusion, in our view, may be better interpreted by its autonomous concept of “administrative practice,” which, in case of a systemic failure of domestic protection of rights, invites the Court’s intervention. Accordingly, it suggests that the subsidiarity principle, which the Chinese approach relies heavily upon, loses its ground to apply in extradition cases as Liu. International intervention, including a refusal of extradition based on prevention of ill-treatment, becomes legitimate.

Besides widespread practices in China of torture and ill-treatment documented in various independent reports, the Court also cites the CAT committee about the common denial of the detainees’ access to lawyers under the State Secrets Law and the excessive dependence on self-confessions often extracted from torture as evidence in the criminal justice system (para. 79). We note that there are other institutionalized human rights problems in China that the Court could have cited, including de facto disappearance up to six months under the “retention in custody” measures in the 2018 Supervision Law and “Residential Surveillance at a Designated Place,” both of which have been commonly abused in the Chinese investigation process.

Despite the Court’s finding against Liu’s extradition, it seems to suggest that extraditions to China remain feasible with diplomatic assurances that could “offer in practice a sufficient guarantee” (para. 82) to protect the potential victims from ill-treatment. In line with the Court’s jurisprudence, we argue that such a guarantee should be premised on China’s credible, meaningful cooperation with supervision mechanisms as well as effective international monitoring of China’s promises.

Finally, given that the Court has decided in Liu’s favor on the ground of Art. 3 of the ECHR, it is understandable, yet regrettable, that the Court does not go further to consider the applicant’s claim about his rights to a fair trial under Art. 6, examining Chinese criminal procedure under the “flagrant denial of justice” test (see Al Nashiri v. Poland, no. 28761/11). While this question may seem unresolved, we believe that the Court’s grounds for relieving the burden of proof for individualized assessment in Liu would also exist in scenarios evaluating whether a “flagrant denial of justice” exists and therefore should be similarly applicable to the test in future cases.


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