Application No. 35218/97
by MANDUGEQI and JINGE
against Poland
The European Commission of Human Rights sitting in private on
19 September 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 7 March 1997 by
MANDUGEQI and JINGE against Poland and registered on 7 March 1997 under
file No. 35218/97;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 14 May
1997 and the observations in reply submitted by the applicants
on 20 May 1997;
- the applicants' letter of 5 August 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are a couple of Chinese citizens born,
respectively, in 1943 and 1954. They are represented before the
Commission by Mr. Wojciech Hermelinski, a lawyer practising in Warsaw.
The facts of the case, as submitted by the parties, may be
summarised as follows:
Particular circumstances of the case:
On 24 July 1994 the Chinese Security Services issued warrants of
arrest against the applicants on charges of fraud under Article 152 of
the Chinese Act on Penalties committed by misappropriation of property
in sum of approximately 10 million juan, i.e. 2,1 million US $.
On 10 August 1996 the applicants were apprehended by the police
at the border and arrested at the Warsaw Ok*cie International Airport
by virtue of an international warrant of arrest issued by Interpol in
November 1994 upon request of the Chinese branch of Interpol.
On 11 August 1996 the Warsaw Regional Court remanded them in
custody with a view to extradition on suspicion of fraud.
On 2 September 1996 the Chinese Ministry of Foreign Affairs
submitted a request for extradition to the Polish Government.
On 14 October 1996 the applicants were heard by the Warsaw
Regional Court within the framework of the extradition proceedings.
On 7 February 1997 the Warsaw Regional Court pronounced an
opinion as to the admissibility of the applicants' extradition. The
Court considered that it transpired from the documents submitted with
the request for extradition that the charges against the applicants
were punishable under the provisions of the Polish Criminal Code.
Thus, the necessary requirement for extradition, i.e. that the acts
concerned were punishable in both countries, was complied with. The
Court went on to state that the condition of reciprocity between Poland
and China was not met as there was no treaty on extradition between
Poland and China and that there had not been any case of extradition
between these countries in recent years. Thus it could not be
established that China would ensure reciprocity.
The Court further considered that the applicants' extradition
would be in breach of Article 3 of the Convention. It transpired from
the explanations given by the applicants before the Court and from the
materials submitted by Amnesty International, in particular from its
Report for 1995, that there were serious grounds for believing that,
if extradited, the persons extradited, regardless of the character of
their offence, would be subjected to treatment contrary to Article 3
of the Convention both during the investigations and during the
execution of a prison penalty. The Court concluded that in its opinion
the applicants' extradition would not be compatible with the Polish
legal order insofar as it incorporated the international conventions
ratified by Poland and in particular the European Convention on Human
Rights.
On 11 February 1997 the Warsaw Regional Prosecutor lodged an
appeal against the opinion.
On 7 March 1997 the Warsaw Court of Appeal quashed the opinion
of 7 February 1997 and pronounced an opinion to the effect that the
applicants' extradition would be admissible.
The Court observed that in the request for extradition it had
been stated that from 1987 to 1993 the applicants had run a commercial
company in China as its board director and executive director,
respectively. They had defrauded numerous banks, companies and private
persons for a sum equivalent to approximately 2 million US $ by taking
various loans on which the same property served as a collateral, by
accepting payments for merchandise which they had subsequently not
delivered, by failing to pay for merchandise and for taking loans which
had not been repaid. The Court further had regard to the information
submitted in the extradition request, i.e. that criminal proceedings
had been instituted against the applicants in which the public
prosecutor had conducted a "thorough investigation as to the frauds
committed" by them, and to the summary of facts, supported by evidence,
as to the offences with which the applicants had been charged which had
been annexed to the extradition request. The Court also noted that in
the course of the appellate proceedings before it the Chinese Ministry
of Foreign Affairs had submitted a further assurance that no more
severe penalty would be imposed on the applicants than that foreseen
for an identical offence in the Polish Criminal Code.
The Court finally concluded that, having regard to the evidence
submitted by the Chinese authorities in the extradition request and to
the applicants' submissions before the Regional Public Prosecutor and
before the Warsaw Regional Court, there were no sufficient grounds for
believing that, if extradited, they would run a risk of treatment
contrary to the Convention. It was true that in the past Mr. Manduqegi
had been convicted of attempted illegal crossing of the border and had
served a prison sentence. However, at a hearing before the Warsaw
Regional Court on 14 October 1996 he had stated that the issues
relating to his conviction had been settled between him and the
authorities and that, as a result, he could subsequently become a civil
servant. Mr. Manduqegi had presented to the Regional Court his large-
scale business activities in a detailed manner and stated that certain
of his undertakings had no precedent in communist China. He had made
it clear that his business success had not been impeded in any way by
the Chinese authorities as shown by, inter alia, a letter of the
Chinese Civil Aviation Committee of 11 March 1993 in which certain
deference in respect of his business projects was shown. Mr. Manduqegi
had also acknowledged that he had been an informant of the secret
police for the last seventeen years and that his wife's cooperation
with the police was only slightly shorter. It was, inter alia, due to
this cooperation that they could have obtained passports and left China
in 1993. In the light of these considerations the Court concluded that
neither the applicants' actual social position nor the character of the
charges against them, which were far from being of a political
character, would justify the conclusion that they ran a risk of being
subjected to such an extreme form of discrimination as to fall within
the scope of Article 3 of the Convention.
The Court of Appeal further observed that it had not disregarded
the arguments submitted by the applicants, based on the reports of
Amnesty International. It was true that it transpired from these
documents that the Chinese administration of justice was particularly
oppressive in that, inter alia, there were a very large number of
capital penalties being imposed and executed, that unacceptable methods
were being applied with regard to persons against whom criminal
proceedings were instituted and that the deprivation of liberty was
being imposed without a judicial decision. However, the Court noted
that it should be borne in mind that in the present case the Chinese
authorities had undertaken that the applicants' case would be examined
by a court, that capital punishment would not be imposed and that no
penalties would be imposed which would be more severe than those
imposed for the same offences under Polish law. Therefore the opinion
of the Regional Court as to the risk of treatment contrary to Article
3 of the Convention was not justified as the Court had based it only
on generalisation of findings made by Amnesty International in relation
to all criminal proceedings conducted in China. The Regional Court had
failed to indicate specific characteristics of the applicants' case
from which it would necessarily follow that their human rights would
be breached in the criminal proceedings against them in China.
Moreover, the Regional Court had entirely disregarded the undertakings
as to the applicants' fate made by the Chinese authorities in the
extradition request. The Court concluded that there were no legal
obstacles to the applicants' extradition.
On 18 March 1997 the Warsaw Court of Appeal prolonged the
applicants' detention pending extradition until 20 July 1997.
On 13 April 1997 the applicants lodged an appeal in cassation
with the Supreme Court.
On 29 July 1997 the Supreme Court rendered a decision in the
cassation proceedings. The Court considered, inter alia, that under
Article 1 of the Convention the States Parties were obliged to secure
to everyone within their jurisdiction the rights and freedoms set out
in the Convention. Article 3 of the Convention prohibited torture,
inhuman and degrading treatment. Thus, a decision by a Contracting
State to extradite a fugitive might give rise to an issue under Article
3 of the Convention. It was not necessary to have established with
certainty that the extradited person would be subject to treatment
contrary to this provision. It was sufficient that there was a
probability ("prawdopodobienstwo") that such treatment might occur.
In the present case the factual findings of the courts in this respect
did not differ: the Regional Court had concluded that there were
sufficient grounds for believing that, if extradited, the applicants
would run the risk of treatment contrary to Article 3 of the
Convention, whereas the Court of Appeal had, on the basis of the same
materials, concluded that it had not been shown that the applicants
could be exposed to such treatment. In the light of the evidence
before that Court, the interpretation of the applicable substantive
law, i.e. Article 3 of the Convention, could not lead to any conclusion
other than that the conclusion that the applicants' extradition would
have been unlawful.
Relevant domestic law
Under Article 152 of the Chinese Criminal Code the offence of
aggravated fraud is liable to not less than five years and not more
than ten years of a fixed-term imprisonment; in especially serious
cases, the sentence is to be not less than ten years of fixed-term
imprisonment or life imprisonment, and the offender's property may in
addition be confiscated.
Under Chapter 56 of the Polish Code of Criminal Procedure it is
the General Prosecutor (Minister of Justice) who is competent to take
a decision on extradition. Before this decision is taken, the Regional
Court rules on the admissibility of extradition. An appeal lies
against its opinion with the Court of Appeal. If the opinion on the
admissibility is negative, the General Prosecutor is bound by it. If
the court states that there are no legal impediments to extradition,
the final decision lies within the discretionary powers of the General
Prosecutor.
Under Article 534 para. 1 of the Code of Criminal Procedure the
request for extradition shall be refused if the person concerned is
a Polish citizen or has been granted asylum in Poland.
Under Article 534 para. 2 the extradition may be refused if the
criminal offence was committed within the territorial jurisdiction of
Poland; if criminal proceedings concerning the same act committed by
the same person are pending, were pending or ended by a final decision
in Poland; if under the law of the requesting State the offence
concerned is subject to a penalty not exceeding one year or to a lesser
penalty, or the penalty imposed does not exceed this period; if
pursuant to Polish law the offence is subject to private prosecution;
and if the requesting State does not guarantee reciprocity.
COMPLAINTS
The applicants complain under Article 3 of the Convention that
their extradition to China would expose them to a risk of being
subjected within the framework of the criminal proceedings against them
to torture or to inhuman or degrading treatment as the Chinese system
of criminal procedure does not offer any relevant safeguards. They
submit that inhuman or degrading punishment would be inflicted on them
when they are convicted. They submit that their case should be
assessed against the general background of the human rights situation
in China with regard to criminal proceedings and execution of
penalties.
The applicants complain under Article 6 of the Convention that
the extradition proceedings were unfair in that the additional
submissions of the Public Prosecutor to the Court of Appeal in reply
to the applicants' observations to the Court were not communicated to
them. Consequently, they did not have an opportunity to submit any
relevant comments.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced and registered on 7 March 1997.
On 7 March 1997 the Commission's President decided to apply
Rule 36 of the Commission's Rules of Procedure and to communicate the
case to the respondent Government under Article 3 of the Convention.
The Government submitted their observations on 14 May 1997. The
applicants replied on 20 May 1997.
In a letter of 5 August 1997 the applicants informed the
Commission that in view of the Supreme Court's decision of 29 July 1997
they wished to withdraw their case.
REASONS FOR THE DECISION
The Commission notes that in view of the Supreme Court's decision
to the effect that the extradition of the applicants' to China would
have been unlawful the applicants have informed the Commission that
they wish to withdraw their case.
In these circumstances, the Commission concludes pursuant to
Article 30 para. 1 (a) and (c) of the Convention that the applicants
do not intend to pursue their application and that it is, therefore,
no longer justified to continue the examination of the petition.
Moreover, there are no reasons of a general character affecting respect
for Human Rights as defined in this Convention which require the
further examination of the application by virtue of Article 30 para.
1 in fine of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy