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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