Post on 05-May-2022
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2007/ACT/WKSP1/019
China's Cooperation with Foreign States on Extradition
Submitted by: China
Workshop on Strengthening Cooperation Mechanisms in the Asia-Pacific in the Fight
Against High-Level CorruptionLima, Peru
29-31 October 2007
CHINA'S COOPERATION WITH FOREIGN STATES ON EXTRADITION
Chinese Government attaches great importance to conduct both bilateral and multilateral cooperation
with other APEC economies in the field of mutual legal assistance and extradition, with a view to
establish a comprehensive and effective regional network for legal cooperation in combating corruption.
Bearing this in mind, we are very pleased to have the opportunity to attend this seminar, and exchange
views with you and deepen mutual understandings among us.
Now please allow me to introduce the current situation of China's cooperation with foreign states on
extradition. I will focus on three parts, namely, the legal framework for extradition cooperation; the legal
procedure for extradition; and the major problems encountered in the process of cooperation.
1. LEGAL FRAMEWORK
Ever since the 1990s of last century, China has concluded 29 bilateral extradition treaties, ratified or
acceded to more than 20 multilateral conventions, and more importantly, in 2000 the Extradition Law of
the People's Republic of China was adopted and came into force on December 28 of the same year.
The above-mentioned bilateral treaties, multilateral conventions and domestic laws constitute China's
legal framework for extradition.
1.1 EXTRADITION LAW
Extradition Law of the People's Republic of China is the principal legal resource on which China
conducted extradition cooperation with foreign states. There are altogether 4 chapters, 55 articles. The
principles we follow in such cooperation are: the principle of equality and reciprocity, the principle of
not to impair sovereignty, security or public interests, the principle of dual criminality and minimum
offence and so on. I will go into detail of the principles later in Part 2.
1.2 BILATERAL TREATIES
Up to October 1, 2007, China has concluded 29 bilateral extradition treaties, among which there are 6
APEC economies, namely, Thailand, Russia, Republic of Korea, the Philippines, Peru and Australia.
1.3 MULTILATERAL CONVENTIONS
Up to October 1, 2007, China has ratified or acceded to more than 20 multilateral conventions with
extradition articles, covering the fields of transnational crime, anti-terrorism, human rights and
humanitarian, etc. As the most important international legal instrument against corruption, the United
Nations Convention against Corruption became effective in China on January 13, 2006. Chinese
government is willing to discuss the possibility of conducting effective cooperation on extradition with
interested partners on the basis of multilateral conventions, particularly under the framework of
UNCAC.
2. LEGAL PROCEDURE
Now I will go into details on the major legal procedures on extradition.
2.1 LEGAL BASIS
There are two situations upon which China may conduct extradition cooperation with foreign states,
namely, the existence of treaty relations between China and the relevant foreign state, and the
undertaking of reciprocity in the absence of the former legal basis. For the purpose of extradition, the
existence of treaty relations means either there is a bilateral extradition treaty between China and the
relevant foreign state, or there is a multilateral convention with extradition article to which China and
the relevant foreign state are both parties. For the purpose of reciprocity, it is accepted that such
undertaking like "State X promises to cooperate with China on extradition in the similar cases later on"
has been made either in the requesting letter or a diplomatic note.
2.2 COMMUNICATING AUTHORITY
China and foreign states communicate through diplomatic channels for extradition. The Ministry of
Foreign Affairs of China is designated as the communicating authority for extradition. The request for
extradition from the Requesting State shall be submitted to the Ministry of Foreign Affairs of China.
2.3 REQUEST MADE TO CHINA ON EXTRADITION
2.3.1 CONDITIONS FOR EXTRADITION
Request for extradition made by a foreign state to China may be granted only when it meets the
following conditions:
(a) the conduct for which the extradition is requested constitutes an offence under the laws of both
the People’s Republic of China and the Requesting State; and
(b) where the request for extradition is aimed at instituting criminal proceedings, the offence for
which the extradition is requested is punishable under the laws of both the people’s Republic of
China and the Requesting State by the penalty of imprisonment for a period of more than one
year or by any other heavier penalty; where the request for extradition is aimed at executing a
sentence imposed, the period of sentence that remains to be served by the person sought is at
least six months at the time when the request for the extradition is made.
2.3.2 MANDATORY GROUNDS FOR REFUSAL
Request for extradition made by a foreign state to the People’s Republic of China shall be refused if:
(a) the person sought is a national of the People’s Republic of China under the law of the People’s
Republic of China;
(b) the judicial organ of the People’s Republic of China has rendered an effective judgment or
terminated the criminal proceedings in respect of the offence for which the extradition is
requested at the time when the request for extradition is received;
(c) the request for extradition is made for a political offence, or the People’s Republic of China has
granted asylum to the person sought;
(d) the person sought may be prosecuted or punished on account of that person’s race, religion,
nationality, sex, political opinion or personal status, or that person may be prejudiced against in
judicial proceedings for any of the above accounts;
(e) the offence for which the extradition is requested is a purely military offence under the law of the
People’s Republic of China or the law of the Requesting State;
(f) the person sought shall be immune from criminal responsibility for any reason including lapse of
time and amnesty under the law of the People’s Republic of China or that of the Requesting
State at the time when the request for extradition is received;
(g) the person sought has been or would be subject to torture or other cruel, inhuman or degrading
treatment or punishment in the Requesting State; or
(h) request for extradition is made by the Requesting State on the basis of a judgment rendered in
absentia, unless the Requesting State undertakes that the person sought has the opportunity to
have the case retried in his or her presence.
2.3.3 OPTIONAL GROUNDS FOR REFUSAL
Request for extradition made by a foreign state to the People’s Republic of China may be refused if:
(a) the People’s Republic of China has jurisdiction over the offence for which the extradition is
requested and is conducting or contemplates to institute criminal proceedings against the
person sought; or
(b) extradition would be incompatible with humanitarian considerations in view of the age, health
or other conditions of the person sought.
2.3.4 SUBMISSION OF THE REQUEST FOR EXTRADITION
2.3.4.1 A Letter of Request
The Requesting State shall present a letter of request for extradition, which shall specify the follows:
(a) the name of the requesting authority;
(b) the name, sex, age, nationality, category and number of identification documents, occupation,
characteristics of appearance, domicile and residence of the person sought and other
information that may help to identify that person and search for the person;
(c) facts of the offence, including the time, place, conduct and outcome of the offence; and
(d) text of provisions of law on establishing of the offence, penalty and prescription for prosecution.
2.3.4.2 Accompanying Documents and Materials
A letter of request for Extradition submitted by the Requesting State shall be accompanied by:
(a) where the request for extradition is aimed at instituting criminal proceedings, a copy of the
warrant of arrest or other document with the same effect; where the request for extradition is
aimed at executing a sentence, a copy of effective written judgment or verdict, and statement of
period of sentence which has already been executed; and
(b) necessary evidence of the offence or evidential materials.
Other information including the photographs and fingerprints of the person sought and other materials
in control of the Requesting State is needed to help identify that person.
2.3.4.3 Signature or Seal / Translation
A letter of request for extradition and other relevant documents submitted by the Requesting shall be
officially signed or sealed by competent authorities of the Requesting State and be accompanied by
translations in Chinese or other languages agreed to by the Ministry of Foreign Affairs.
2.3.5 REVIEW ON THE REQUEST FOR EXTRADITION
The reviewing process includes:
2.3.5.1 FORMAL REVIEW
The Ministry of Foreign Affairs, upon receiving the request for extradition from the Requesting State,
shall review whether the letter of request for extradition as well as its supporting documents and
materials comply with above-mentioned conditions and extradition treaties.
Where the Ministry of Foreign Affairs, after review, is of the opinion that the request of extradition does
not comply with above-mentioned conditions or extradition treaties, the Ministry may ask the
Requesting State to furnish supplementary materials within 30 days. The time limit may be extended
for 15 days at the request of the Requesting State. If the Requesting State fails to submit
supplementary materials within the above-mentioned period, the Ministry of Foreign Affairs shall
terminate the extradition case. (In such case, the Requesting State may make a fresh request for
extradition for the same offence).
Where the Ministry of Foreign Affairs, after review, considers that the request for extradition complies
with the above-mentioned conditions and extradition treaties, it shall transmit the letter of request for
extradition as well as its supporting documents and materials to the Supreme People’s Court and the
Supreme People’s Procuratorate.
2.2.5.2 JUDICIAL REVIEW
A. Review by the Supreme People’s Procuratorate
Where the Supreme People’s Procuratorate, after review, is of the opinion that the offence for which
the extradition is requested or other offences of the person sought shall be prosecuted by Chinese
judicial organs while criminal proceedings have not yet been instituted, it will, within one month after
receiving the letter of request for extradition as well as its supporting documents and materials, notify
the Supreme People’s Court and the Ministry of Foreign Affairs respectively of its opinion to institute
criminal proceedings.
So the review by the Supreme People’s Procuratorate will be whether the person sought shall be
prosecuted by Chinese judicial organs.
B. Review by the Supreme People’s Court
(a) Designate a Higher People’s Court to Exam
The Supreme People’s Court shall designate a higher people’s court to exam the request and for that
purpose transmit the letter of request and the accompanying documents and materials for
examination.
(b) Examination by A Higher People’s Court
A Higher People’s Court will form a collegial panel composed of three judges to review the request for
extradition.
When examining the extradition case, the Higher People’s Court shall hear the pleading of the person
sought and the opinion of the Chinese lawyers entrusted by the person.
The higher people’s court shall, after examination, render a decision that the request meets the
conditions for extradition if it considers that the request is in compliance with Extradition Law and of
extradition treaties; or render a decision that extradition shall not be granted when it considers that the
request is not in compliance with the provisions of Extradition Law and of extradition treaties.
Where the person sought refuses to accept the decision that the request meets the conditions for
extradition made by the higher people’s court, that person and the Chinese lawyers representing that
person may submit the opinion to the Supreme People’s Court within 10 days provided by Extradition
Law.
After making the decision that the request meets the conditions for extradition or the decision that no
extradition shall be granted, the Higher People’s Court shall have it read to the person sought and
submit the decision to the Supreme People’s Court for review.
(c) approve or quash or modify the decision by the Higher People’s Court
The Supreme People’s Court shall, after reviewing the decision of the Higher People’s Court, approve
it where the decision is considered in compliance with the provisions of Extradition Law and of
extradition treaties, or quash it and sent it back to the higher people’s court which has originally
reviewed it for a fresh review, or modify the decision directly.
After making the decision of approval or modification, the Supreme People’s Court shall, within 7 days
from it makes the decision, transmit the letter of decision to the Ministry of Foreign Affairs, at the same
time, serve it on the person sought.
After approving the decision or making the decision that no extradition shall be granted, the Supreme
People’s Court shall immediately notify the public security organ to terminate the compulsory against
the person sought.
2.2.5.3 DECISION ON THE REQUEST
A. The Supreme People’s Court
The Supreme People’s Court will transmit the letter of decision to the Ministry of Foreign Affairs after
making the decision of approval or revision.
B. The Ministry of Foreign Affairs
The Ministry of Foreign Affairs shall:
(a). Notify the Requesting State of the decision of refusal to extradition made by the Supreme People’s
Court;
(b). Submit the decision to the State Council to determine whether the person sought shall be
extradited upon receiving the decision that the request meets the conditions for extradition made by
the Supreme People’s Court.
C. The State Council
Where the State Council decides to grant extradition, the Ministry of Foreign Affairs shall:
(a). Notify the Ministry of Public Security of the decision so as to have the extradition be executed by
the latter;
(b). Notify the requesting State to consult with the Ministry of Public Security for arrangements with
regard to the time, place, manners for surrender of the person sought and other matters related to the
execution of extradition.
Where the State Council determines not to extradite the person sought, the Ministry of Foreign Affairs
will notify the Requesting State.
3. Problems and Recommendations
The biggest difficulty encountered in the process of extradition cooperation between China and foreign
states is the lack of legal framework, therefore the requests for extradition by China were rejected from
time to time. Though China has concluded 29 bilateral treaties and took part in more than 20
multilateral conventions, such network is by far behind the practical need. Lacking of treaty relations is
always the excuse for refusal. The only result of which is to provide safe haven to those who should
have been punished for their corrupted offences, no matter how legitimate the refusal is.
For this reason, it is important and crucial to establish and strengthen a comprehensive and effective
cooperation mechanism, with a view to deny safe haven, both at international and regional level.
Therefore we support the idea to strengthen cooperation within Asia-Pacific region, including to
exchange information on legislations and law enforcement, to encourage the conclusion of bilateral
extradition treaties within this region, to discuss the cooperation for extradition under the framework of
UNCAC and other multilateral conventions, and to adopt flexible measures other than extradition.
Thank you.
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CCHINA'SHINA'S CCOOPERATIONOOPERATION WITH WITH FFOREIGNOREIGN SSTATES ONTATES ON EEXTRADITIONXTRADITION
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• Chinese Government attaches great importance to conduct both multilateral and bilateral cooperation with other APEC members in the field of mutual legal assistance and extradition, with a view to combat corruption and establish a comprehensive and effective regional network for legal cooperation.
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THREE PARTS
• The legal framework for extradition; • The legal procedure for extradition; • The major problems encountered in
the process of cooperation.
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1. LEGAL FRAMEWORK
• Domestic Laws• Bilateral Treaties• Multilateral Conventions
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1.1 DOMESTIC LAWS
• EXTRADITION LAW of the People's Republic of China
• Entry into force on Dec. 28, 2000• 55 Articles and 4 Chapters• The principal legal resource
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1.2 BILATERAL TREATIES
• 29 Bilateral Extradition Treaties• Extradition Treaties with 6 APEC
Members: Thailand, Russia, ROK, the Philippines, Peru, and Australia
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ANNEX 1: LIST OF EXTRADITION TREATIES
1 THAILAND Aug.26,1993 Mar.7,1999
2 BELARUS Jun.22,1995 May.7,1998
3 RUSSIA Jun.26,1995 Jan.10,1997
6 KAZAKHSTAN Jul.5,1996 Feb.10,1998
5 ROMANIA Jul.1,1996 Jan.16,1999
4 BULGARIA May.20,1996 Jul.3,1997
NAME OF STATE SIGNATURE ENTRY INTO FORCE
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7 KYRGHYZ Apr.27,1998 Apr.27,2004
8 UKRAINE Dec.10,1998 Jul.13,2000
9 CAMBODIA Feb.9,1999 Dec.13,2000
11 KOREA Oct.18,2000 Apr.12,2002
12 PHILIPPINES Oct.30,2001 Mar.12,2006
13 PERU Nov.5,2001 Apr.5,2003
10 UZBEKISTAN Nov.8,1999 Sep.29,2000
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14 TUNISIA Nov.19,2001 Dec.29,2005
15 SOUTH AFRICA Dec.10,2001 Nov.17,2004
16 LAO Feb.4,2002 Aug.13,2003
17 UAE May 13,2002 May 24,2004
18 LITHUANIA Jun.17,2002 Jun.21,2003
19 PAKISTAN Nov.3,2003
20 LESOTHO Nov.6,2003 Oct.30,2005
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21 BRAZIL Nov.12,2004
22 AZERBAIJAN Mar.17,2005
23 SPAIN Nov.14,2005 Apr.4,2007
24 NAMIBIA Dec.19,2005
25 ANGOLA Jun.20,2006
26 ALGERIA Nov.6,2006
27 PORTUGAL Jan.31,2007
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28 FRANCE Mar.20,2007
29 AUSTRALIA Sep. 6,2007
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1.3 MULTILATERAL CONVENTIONS
• More than 20 multilateral conventions• UNCAC became effective on Jan. 13,
2006• Willing to cooperate under the
framework of multilateral conventions
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2. LEGAL PROCEDURE
• LEGAL BASIS• COMMUNICATING AUTHORITY• REQUEST MADE TO CHINA ON
EXTRADITION
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2.1 LEGAL BASIS
• Legal basis: the existence of treaty relations, or the undertaking of reciprocity
• Treaty relations: a bilateral extradition treaty between China and the relevant foreign state, or a multilateral convention with extradition article to which China and the relevant foreign state are both parties.
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• Reciprocity: such undertaking like "State X promises to cooperate with China on extradition in the similar cases later on" has been made either in the requesting letter or in a diplomatic note.
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2.2 COMMUNICATING AUTHORITY
• Through diplomatic channel• MFA of China is the communicating
authority• Request for extradition shall be
submitted to the MFA of China.
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2.3 REQUEST MADE TO CHINA ONEXTRADITION
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2.3.1 CONDITIONS FOR EXTRADITION
• Double criminality• Minimum offence
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2.3.2 MANDATORY GROUNDS FORREFUSAL
• not to extradite Chinese nationals• double jeopardy• not to extradite political offence• Unjust treatment• Not to extradite military offence
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• immune from criminal responsibility• be subjected to torture• default judgment
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2.3.3 OPTIONAL GROUNDS FORREFUSAL
• Jurisdiction exercised by China• Humanitarian reason
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2.3.4 SUBMISSION OF THE REQUEST FOR EXTRADITION
• A Letter of Request• Accompanying Documents and
Materials• Signature or Seal / Translation
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2.3.5 REVIEW ON THE REQUEST FOREXTRADITION
• Formal Review by MFA• Judicial Review by Supreme People's
Procuratorate and Supreme People's Court and the designated Higher Courts
• Administrative Review by the State Council--final decision
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3. PROBLEMS ENCOUNTERED
• The biggest difficulty encountered is the lack of legal framework
• It is important and crucial to establish and strengthen a comprehensive and effective cooperation mechanism, with a view to deny safe haven, both at international and regional level.
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Recomendations• ----to exchange information on legislations
and law enforcement, • ----to encourage the conclusion of bilateral
extradition treaties within this region,• ----to discuss the cooperation for extradition
under the framework of UNCAC and other multilateral conventions,
• ----to adopt flexible measures other than extradition.
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• Thanks• Gracias
• 谢谢