Legal summary

October 2022

Liu v. Poland - 37610/18

Judgment 6.10.2022 [Section I]

Article 3

Extradition

Proposed extradition to China where the applicant would face a real risk of ill-treatment in detention: extradition would constitute a violation

Facts – The applicant, from Taiwan, was arrested in Poland on 6 August 2017 on the basis of an international arrest warrant. In September 2017 the Chinese authorities requested Poland to extradite him to the People’s Republic of China.

In February 2018 the Regional Court held that the applicant’s extradition to China would be in conformity with Polish law. It also observed that there were no reasons to suspect that he would be at risk of torture, other forms of ill‑treatment or a flagrant denial of his right to a fair trial. On 26 July 2018 the Court of Appeal upheld the decision of the Regional Court.

On 12 September 2018, the Court indicated to the Government interim measures, under Rule 39 of the Rules of Court, that it should not extradite the applicant until further notice.

On 7 May 2019 the Commissioner for Human Rights lodged a cassation appeal on behalf of the applicant with the Supreme Court which dismissed it on 1 October 2020.

If he were to be extradited, the applicant would be placed within the Chinese penitentiary system.

Law – Article 3:

(a) Assessment by the domestic authorities of the claims of a real risk of ill‑treatment – The domestic courts had dismissed the claims of the applicant, considering that he had failed to substantiate an individualised risk of being subjected to torture or other forms of ill-treatment Nevertheless, their reference to the reports of international organisations had been only superficial. Their assessment had not included any analysis of recent information, for example, by United Nations bodies and/or other international or non-governmental organisations on the situation in Chinese detention facilities, which had been easily available. Thus, the Court was not persuaded that the applicant’s allegations had been duly examined by the domestic authorities.

(b) Examination by the Court of the alleged risk of ill-treatment – China had signed the International Covenant on Civil and Political Rights (ICCPR) but had not ratified it. Also, it was not a Party to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and had not recognised the authority of the United Nations Committee against Torture (CAT) to perform an inquiry. In consequence, it was not possible for individuals who alleged that their basic human rights had been breached to have recourse to any independent international protection mechanism, or for any independent international body to perform an onsite inquiry in China without the latter’s invitation.

Where there were many significant shortcomings in the domestic legislation in the country of destination and where allegations of serious abuses had been made in independent reports from numerous sources, the benefit of the doubt should be granted to an individual seeking protection.

The Government had obtained only informal declarations from the Chinese authorities that the applicant’s human rights would be respected. It had not sought any diplomatic assurances such as to allow the Court to evaluate whether such assurances would offer in practice a sufficient guarantee that the applicant would be protected against the risk of ill‑treatment.

Consequently, having regard to the parties’ submissions and the various reports by United Nations bodies and other organisations, to which the Court attached considerable weight, the extent to which torture and other forms of ill-treatment were credibly and consistently reported to be used in Chinese detention facilities and penitentiaries could be equated to the existence of a general situation of violence. Thereby the applicant was relieved from showing specific personal grounds of fear, it being enough that it was established that, upon extradition, he would be placed in a Chinese detention centre or penitentiary where, the Court concluded, he would face a real risk of ill-treatment.

Conclusion : extradition would constitute a violation (unanimously).

Article 5 § 1 (f): The applicant‘s detention as of 6 August 2017 had been ordered with a view to his extradition from Poland. The first period lasted less than one year until the Court of Appeal’s decision on 26 July 2018. The simultaneous extradition and asylum proceedings had been pursued by the authorities with due diligence.

The same was not true in respect of the period from 26 July 2018 to present. The Supreme Court had delivered its judgment on 1 October 2020 after a year and four months – after a total period of detention of three years and two months

Consequently, having regard to the nature of the extradition proceedings, whose aim was to ensure that the prosecution of the applicant would be pursued in another State, and the unjustified delays in the proceedings, the applicant’s detention had not been “lawful”.

Conclusion : violation (unanimously).

Rule 39: The indications made to the Government to remain in force until the present judgment becomes final or until the Court takes a further decision in this regard.

Article 41: EUR 6,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.

(See also Sufi and Elmi v. the United Kingdom , 8319/07 and 11449/07, 28 June 2011, Legal summary ; Harkins and Edwards v. the United Kingdom , 9146/07 and 32650/07, 17 January 2012, Legal summary ; Othman (Abu Qatada) v. the United Kingdom , 8139/09, 17 January 2012, Legal summary ; J.K. and Others v. Sweden [GC], 59166/12, 23 August 2016, Legal summary ; Khasanov and Rakhmanov v. Russia [GC], 28492/15 and 49975/15, 29 April 2022, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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