European Court of Human Rights handed down a judgment last month in Liu v. Poland, an under-reported case that could have big implications worldwide.VINCENT KESSLER/Reuters
When the European Court of Human Rights handed down a judgment last month in Liu v. Poland, after five years of legal wrangling, it attracted scant attention. The court itself issued a news release, and a handful of legal websites wrote about it. Otherwise, nothing.
But the ruling could have sweeping ramifications for how 46 countries handle extraditions to China, multiple experts told The Globe and Mail, potentially blocking them entirely just as Beijing is ramping up efforts to target fugitives and dissidents overseas.
“It is hard to overstate how influential this decision could be,” said Peter Dahlin, co-founder of Safeguard Defenders, a European NGO that is trying to draw attention to the verdict. “This is going to cause a major headache for China.”
China’s Ministry of Foreign Affairs and its mission to Europe did not respond to requests for comment.
The man at the centre of the case, Liu Hung Tao, was detained in Warsaw in August, 2017, after Interpol issued a red notice for him in connection with a Chinese and Spanish telecom fraud investigation. Authorities in China quickly sought his extradition, and in February, 2018, a Polish court ruled this could proceed.
Mr. Liu appealed to the European Court of Human Rights (ECtHR) in Strasbourg, France, and last month – Oct. 6 – judges barred the extradition on the grounds that it would be in violation of Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and “inhuman or degrading treatment or punishment.”
All 46 members of the Council of Europe, an international organization that includes non-European Union states such as the U.K. and Turkey, are bound by the ECHR.
Poland has three months to lodge an appeal; if no application is made, and Poland shows no indication it intends to appeal, the verdict will become final on Jan. 6.
When extraditions to China have been blocked in the past, it is usually because the defendant has been able to show they would be at risk of abuse because of their political or religious beliefs. Liu v. Poland basically says anyone facing detention in China, for any reason, is at risk of treatment that violates Article 3.
Mr. Liu “is relieved from showing specific personal grounds of fear,” the court said, pointing to widespread reports of torture and other mistreatment in Chinese detention facilities. “Since it is uncontested that the applicant would be detained in China if the extradition order was implemented, the Court finds it established that the applicant would face a real risk of ill-treatment if extradited to that State.”
Marcin Górski, a Polish lawyer who represented Mr. Liu, said the judgment “means the possibility for China to extradite its own or a foreign citizen from Europe has shrunk significantly.”
Eva Pils, a professor of law at King’s College London who has appeared as an expert witness in other extradition cases, said she and other advocates “have been hoping for a decision of this kind for a long time.”
“There is a huge problem on both legal and ethical grounds with extraditing people into the Chinese criminal justice system,” said Prof. Pils, who was not involved in the Liu case. “This decision confirms the existence of those concerns, and that is very important.”
But she warned that there may be ways for Beijing to get around the verdict, such as promising not to hold suspects in detention facilities during their trials in order to mollify other governments and courts.
Mr. Dahlin said one reason Safeguard Defenders is highlighting the case is to make it more difficult for countries and courts bound by it to ignore the Strasbourg ruling.
“We need to ensure that this becomes a well-known decision and that the people within the legal system are aware of it,” he said, adding that many extradition decisions are made by officials with little knowledge of China, who assume that because their country signed an extradition treaty with Beijing there should be no problem issuing such orders.
Prof. Pils added that “in addition to courts being affected by this and individual extradition requests, this should prompt member states to reconsider any extradition agreements they have already entered into or that they might contemplate signing.”
Mr. Dahlin said such treaties are “very important symbolically” for China, as they send a message to Chinese dissidents overseas “that this is a country where they are no longer safe.”
Beijing, though, is not always willing to follow the extradition process. Fugitives “persuaded” to return by Chinese police, sometimes through threats to their family members back home. The RCMP is currently investigating the existence of Chinese police stations in Canada, as reported by The Globe and Mail, which are key to such persuasion operations.
Both Mr. Dahlin and Prof. Pils expressed concern that if extradition becomes difficult or impossible, Chinese authorities may resort to covert methods in more cases.