Applicant’s risk of ill-treatment if extradited to China. The length of his detention pending extradition violated the right to personal liberty and security

JUDGMENT

Liu v. Poland 06.10.2022 (app. no. 37610/18)

see here

SUMMARY

The case concerned the extradition proceedings brought against the applicant, on conclusion of
which (in 2020) the Polish courts had authorised his handover to the authorities of the People’s
Republic of China. He was wanted for trial there in connection with a vast international telecomsfraud
syndicate following a Sino-Spanish investigation. It also concerned his detention in Poland
pending extradition.

Relying on Articles 3 (prohibition of torture and of inhuman or degrading treatment), 5 § 1 (right to
liberty and security), and 6 § 1 (right to a fair trial), Mr Liu complained that if extradited to China he
would be at risk of torture or inhuman treatment, and he would not be able to secure a fair trial, and
that his detention pending extradition had been arbitrary and unduly lengthy.

The Court found in particular that the situation within the Chinese prison system could be equated
to a “general situation of violence”, and Mr Liu could thus be exposed to a real risk of ill-treatment if
extradited to China. Furthermore, it held that the Polish Government had failed to act with the
necessary expedition to ensure that the length of his detention had not been overly long.

PROVISIONS

Article 3

Article 5 par. 1

PRINCIPAL FACTS

The applicant, Hung Tao Liu, from Taiwan, was born in 1980 and is currently detained in the
Warsaw-Białołęka Remand Centre.

Legal proceedings

In 2016 Interpol issued a Red Notice for Mr Liu in connection with a Sino-Spanish investigation into a
vast international telecoms fraud syndicate. On 6 August 2017 he was arrested in Poland, following
which the People’s Republic of China requested his extradition. He was denied asylum later that
year.

In February 2018 the Warsaw Regional Court held that the applicant’s extradition to China would be
in conformity with the law, referring to the investigation against Mr Liu and to extensive submissions
by the Chinese Government, including on the human-rights protection system in China, and a
promise that the applicant’s human rights would be protected. That decision was upheld on appeal.

In August 2018 Mr Liu successfully applied to the European Court for an interim measure (Rule 39) to
stop his extradition.

In 2019 a cassation appeal was lodged by the Commissioner for Human Rights, who argued that the
risk to Mr Liu if extradited had not been properly examined. It was dismissed by the Supreme Court in October 2020. The court held, among other things, that the fact that life imprisonment was one of the penalties that could be imposed did not amount to a violation of Article 3 of the Convention.
Detention

Following his arrest in 2017, Mr Liu was detained. That detention was extended by the courts on
several occasions, in the light of, among other things, his lack of ties to Poland and the severity of his
potential sentence. He appealed against four of the extensions given by the Warsaw Court of
Appeal, arguing that the reasoning was inadequate and referring to the toll the long detention had
taken on him, in particular given the fact he did not speak Polish. The decisions to extend were all
upheld.

THE DECISION OF THE COURT…

Article 3

The Court was not convinced that the domestic authorities had adequately assessed Mr Liu’s
arguments, in particular because they had not examined the latest reports by the United Nations
and other international bodies regarding the situation within the Chinese prison system.

Concerning imprisonment in China, the Court noted, among other things, the following: that China
had not ratified the International Covenant on Civil and Political Rights; that there was no
international treaty guarantee of an individual complaint mechanism concerning torture or inhuman
treatment; the United Nations Committee against Torture reported “routine and widespread use of
torture and ill-treatment of suspects in police custody, especially to extract confessions or
information to be used in criminal proceedings”, furthermore stating that the practice of torture and
ill-treatment was still deeply entrenched in the criminal justice system; Amnesty International had
found that lawyers who had raised claims of torture and attempted to have them investigated had
often faced torture themselves. The Court referred to reports by the United Nations and other
international and national governmental and non-governmental organisations in reaching its
conclusions.

Moreover, the guarantees secured from the Chinese Government had been merely informal
assurances.

It found that the extent to which torture and other forms of ill-treatment were credibly and
consistently reported to be used in Chinese detention facilities and prisons may be equated to the
existence of a “general situation of violence”. The extradition of Mr Liu to China would therefore be
in violation of his rights under Article 3 of the Convention.

Article 5 § 1

The Court noted that Mr Liu had been in detention since 6 August 2017. It was satisfied that the
period until July 2018 could be explained by the simultaneous extradition and asylum proceedings
taking place before the authorities. There did not seem to be an adequate explanation for the period
since.

The Government argued that the interim measure issued by the Court had prevented it acting.

However, the Court stated that an indication not to extradite an individual to a particular country
had no bearing on the applicability of Article 5. Indeed, the Government asserted that the
extradition proceedings were still ongoing.

As the domestic authorities had failed to act with the necessary expedition to ensure that the length
of Mr Liu’s detention had not exceeded the time that could be reasonably required for extradition
proceedings, the Court held that his detention had not been lawful, in violation of Article 5 § 1 (f).

Other articles

In view of its finding under Article 3, the Court held that there was no need to examine the
complaint under Article 6 § 1.

Just satisfaction (Article 41)

The Court held that Poland was to pay Mr Liu 6,000 euros (EUR) in respect of non-pecuniary damage
and EUR 12,000 in respect of costs and expenses.