Communicated on 13 May 2019
FIRST SECTION
Application no. 37610/18
Hung Tao LIU
against Poland
lodged on 9 August 2018
STATEMENT OF FACTS
The applicant, Mr Hung Tao Liu, is a citizen of an unrecognised State of Taiwan who was born in Taichung City and is detained in the Warsaw‑Białołęka Remand Centre. He is represented before the Court by Ms P. Liu, residing in Taichung City.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case and the applicant’s detention
The applicant was sought in the context of an international Chinese‑Spanish investigation concerning a vast international telecoms fraud syndicate (the so-called “Great Wall Operation”).
On 8 December 2016 Interpol issued, in connection with the aforementioned investigative proceedings, a Red Notice “Fugitive Wanted for Prosecution” against the applicant, requesting that he be located and provisionally arrested pending extradition. According to the Red Notice, the applicant had been the deputy head of an international telecoms fraud syndicate.
On 6 August 2017 he was arrested in Poland.
On 7 August 2017 the Warsaw Regional Prosecution Office lodged an application with Warsaw Regional Court to detain the applicant on remand.
On 8 August 2017 the Warsaw Regional Court issued a detention order against the applicant (case no. VIII Kp 965/17) until 15 September 2017. The applicant’s detention on remand has been extended by the court several times since then.
2. Extradition proceedings
On 12 September 2017 the Chinese Embassy requested the Polish Foreign Ministry to extradite the applicant to the People’s Republic of China, based on an application for extradition of 1 September 2017.
On 13 September 2017 the Warsaw Regional Prosecution Office lodged with the Warsaw Regional Court an application for consent to extradite the applicant to China, based on the aforementioned extradition request. The regional court decided to ask the Chinese authorities for additional information, in particular concerning the course of criminal proceedings in China and guarantees of a fair trial, as well as the details and conditions of the applicant’s future detention.
On 8 January 2018 the Warsaw Regional Court received additional information from China and on 27 February 2018 it issued a decision (case no. VIII Kop 166/17) confirming the legality of the applicant’s extradition to the People’s Republic of China according to Polish law. The court stressed that there was a high probability that the applicant had committed the offence with which he had been charged. It found that there would be no risk of torture or ill-treatment of the applicant, in particular since he had not been charged for political or persecution reasons. It also held that the Chinese authorities had provided sufficient guarantees that the applicant would have a fair trial in China.
Both the applicant and his lawyer appealed against this decision.
On 26 July 2018 the Warsaw Court of Appeal upheld the decision of the Regional Court (case no. II AKz 342/18). It repeated the reasons given by the court of first instance.
3. Interim measures
On 9 August 2018 the applicant applied for an interim measure pursuant to Rule 39 of the Rules of the Court, requesting the Court to ask the Polish Government to stay the extradition proceedings.
On 30 August 2018 the Court (the duty judge) decided to suspend the examination of Rule 39 of the Rules of Court until receipt of further information from the Government. It decided to request the Government, under Rule 54 § 2 (a) of the Rules of Court, to submit information about the date of the planned extradition and whether diplomatic assurances had been requested by Poland from the Chinese authorities in relation to the alleged violations raised by the applicant.
On 6 and 7 September 2018 the Government provided the Court with the requested information. They submitted that the extradition proceedings were pending at ministerial level and that no decision had yet been taken by the Minister of Justice. Poland had not asked for any diplomatic assurances. Moreover, the Government informed the Court that on 6 September 2018 the Ombudsman had requested the competent governmental authority to provide the files of the applicant’s case in order to analyse whether he should lodge a cassation appeal on the applicant’s behalf.
On 12 September 2018 the President of the First Section decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government not to extradite the applicant until further notice.
B. Relevant domestic law and practice
The extradition procedure is regulated by Articles 602-607 of the Code of Criminal Procedure (“CCP”).
Under Article 603 §§ 1 - 4 of the CCP, the regional court issues a decision on the extradition request of a foreign state after having heard the person to whom the request relates; if necessary also after having conducted the evidentiary proceedings in Poland. The decision is issued during a court hearing, at which both the prosecutor and attorney may be present, and it may be appealed against. If the court denies the request, the person concerned shall not be extradited to the requesting state.
According to Article 603 § 5 of the CCP, the regional court, having ruled on the extradition request of a foreign state, shall transfer its binding decision, together with the case file, to the Minister of Justice. The Minister of Justice shall then decide on the request and communicate this decision to the competent authority in the foreign state.
Article 604 §§ 1 and 2 of the CCP specifies the extradition inadmissibility reasons. These include, among other reasons, a justified concern about the death penalty being pronounced or executed in the requesting state against the person concerned, or a justified concern of violation of the latter’s human rights. The extradition shall also not be contrary to the Polish legal order.
Under Article 605 of the CCP, the regional court, acting of its own motion or on the prosecutor’s request, may issue a detention order against the person to whom the extradition request relates. The general provisions on detention on remand, including Article 263 of the CCP, shall correspondingly apply.
COMPLAINTS
The applicant complains under Article 3 of the Convention that, if he were extradited to the People’s Republic of China, he would be subjected to torture and ill-treatment in a Chinese prison, in particular as a Taiwanese citizen. Relying on Article 6 of the Convention, the applicant also submits that if extradited to the People’s Republic of China, he would face an unfair trial there. Moreover, he complains of violation of his rights under Article 5 of the Convention due to his detention pending extradition.
QUESTIONS TO THE PARTIES
1. In the light of the applicant’s claims and the documents which he has submitted, would he face a risk of being subjected to treatment contrary to Article 3 of the Convention if extradited to the People’s Republic of China?
2. Has the applicant been deprived of his liberty in breach of Article 5 § 1 (f) of the Convention? Reference is made to the length of his detention pending extradition amounting, so far, to at least 1 year and 7 months.
3. Would the applicant risk suffering a flagrant denial of a fair trial in breach of Article 6 § 1 of the Convention if extradited to the People’s Republic of China?
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