To the attention of: Honorable Mr Yvon DETCHENOU, Minister of Justice and Legislation
- CC: Honourable Mr Olushegun Adjadi BAKARI, Minister of Foreign Affairs
- CC: Honourable Mr Alassane SEIDOU, Minister of the Interior and Public Security
- CC: Office of the President of the Republic of Benin, Honourable Mr Patrice TALON
- CC: Office of the African Commission on Human and Peoples' Rights
- CC: Office of the UN Committee Against Torture
- CC: Office of the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Madrid, 29 September 2024
Letter of concern in relation to the pending extradition of Mr GAO Jianhuan (高建焕) to the People’s Republic of China
Dear Honorable Min. DETCHENOU,
We write to express our severe concern regarding an ongoing extradition process in the Republic of Benin, and in particular with regard to the decision adopted by the Cotonou Appeals Court’s Instruction Chamber (case number 0208/PG-24).
Safeguard Defenders is a non-governmental organization registered in Spain. It has extensive experience in the range of issues associated with extraditions to the People’s Republic of China and, as such, has intervened in multiple cases around the world as an expert witness, both in- and outside of Courts. Its work in this matter is based entirely on the international and regional treaties that define the conditions under which an individual may be extradited to a third nation, notably including the absolute prohibition of returning an individual to a country where he or she may be at risk of irreparable harm, including persecution, torture, ill-treatment or other serious human rights violations.”
A range of substantial grounds exist to assume that Mr Gao would encounter such irreparable harm if he were to be returned to the People’s Republic of China. The detrimental human rights situation in its judicial and penitentiary system continues to be denounced by the UN’s independent human rights procedures, leading the European Court of Human Rights to issue a judgment in October 2022 stating 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 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."
The European Court of Human Rights’ decision is on par with a growing trend of refusals to extradite individuals to the People’s Republic of China, as it fails to uphold the minimum standards required under international law. In fact, Mr Gao was previously first detained, then released by authorities in the UAE as China failed – in violation of INTERPOL rules – to file a request for his extradition.
As a signatory State to the International Covenant on Civil and Political Rights and its Optional Protocols, the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol, and the African Charter on Human and Peoples’ Rights; as well as under Article 18 of its Constitution and the Robben Island Guidelines, the People’s Republic of Benin is beholden to uphold the principle of non-refoulement.
We further note the provisions regarding extradition in Titre XIII – Chapitre II – Section I of the Code of Criminal Procedure in the Republic of Benin, and in particular article 737, §8, which provides that: “Extradition shall not be granted when the person requested would be judged in the requesting State by a court that does not provide the fundamental guarantees of procedures and protection of the rights of the defence.”
Ample internationally recognized reports exist on how such guarantees are fundamentally absent in China’s judicial system.
None of these legitimate concerns, based on ample international jurisprudence, was allowed into evidence during the procedure before the Cotonou Appeals’ Court, counter to article 7 of the African Charter on Human and Peoples’ Rights and its Constitutional status under article 7 of the Constitution of the Republic of Benin.
At the time of writing, the defendant nor his counsel have received a copy of the Court’s verdict.
We express further concern at the procedural gaps in the present case, that have further undermined the full enjoyment of Mr Gao’s right to a defence. Several lawyers consulted in Benin has made clear that the case has proceeded in violation of Beninese judicial procedure.
While the appeal process before the Court concluded on September 9, the defence has still not been able to review, read or otherwise access the extradition request from the People’s Republic of China, a situation that Safeguard Defenders has never before encountered. This has made it impossible to verify whether provisions under Section I and II of the aforementioned Title XIII, Chapter II, of the Code of Criminal Procedure in the Republic of Benin have been complied with.
The latter is all the more relevant considering the precedent of Mr Gao’s release in the UAE, due to China’s failure to comply with prescribed procedure under the INTERPOL Statute. A failure which has also led to the ongoing review of the INTERPOL Red Notice at the basis of the defendant’s detention in your country. On 27 September INTERPOL notified Safeguard Defenders that the abuse of the Red Notice by China is to be reviewed by INTERPOL at their 130th session 14 to 18 October.
Honorable Minister,
We kindly request careful review of the process and risks associated with the present case.
We believe the above summarized overview provides sufficient procedural, legal and reputational grounds to halt the extradition of Mr Gao to the People’s Republic of China and uphold Benin’s Constitutional, regional and international commitments.
Sincerely,
Safeguard Defenders
