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Analysis of Sweden's decision to bar extradition to China

Court case number: Ö 2479-19.

This post provides details from the Swedish Supreme Court’s verdict today ruling that Chinese fugitive Qiao Jianjun should not be extradited to China. The full verdict is only available in Swedish (available here). Read the Supreme Court’s summary in English here.

The court finds that the accused is likely guilty of the accused crimes (corruption).

(Swedish) …det föreligger sannolika skäl att QJ har begått gärningarna”

(English translation) […there is probable suspicion that QJ committed the deeds]

 

However, one of the five accusations took place in 2008 and is therefore not extraditable. The other four points (concerning accusations for crimes in 2010 and 2011) do not pose a problem for extradition. 

This analysis is based on Article 10 of the Swedish Extradition Law, which states that extradition is only possible if it matches a crime in Swedish law, that the crime has not reached its statute of limitations, and that the state has the right to ask for extradition (that no other state holds a preferential extradition request for the accused).

The court, however, holds that extradition is not compatible with Article 7, concerning likely persecution if extradited. The law states that an accused may not be extradited if, because of ethnic, cultural, religious or political reasons, the person may be persecuted, or stands at risk of such persecution because of the above reasons.

The court does not think that Qiao’s proclaimed participation in the Tiananmen Square protest movement merited blocking extradition under Article 7, as Qiao has been a long-standing member of the Party and has acted as a state functionary since the movement took place.

The court finds some support for his claim that his (proclaimed) participation and support for the China Democracy Party after having left China could lead to persecution.

(Swedish) Det föreligger hinder mot utlämning på grund av risk för förföljelse

(English translation) [There are impediments to extradition due to risk of persecution]

 

Furthermore, the court finds that extradition would violate Articles 2, 3 and 6 of the European Convention on Human Rights.

  • Article 2: Right to life (no death penalty)
  • Article 3: Prohibition of torture
  • Article 6: Right to a fair trial

 


Qiao Jianjun, being led away from Supreme Court. Copyright Safeguard Defenders.

The court, upon deciding the above, as well as for Article 7 of the Swedish extradition law, finds that materials presented, and the Foreign Ministry country report on China, and the testimonies from the three expert witnesses, Professor Eva Pils, Mr. Peter Humphrey and Safeguard Defenders’ Mr. Peter Dahlin, corroborate the situation as presented by the defense.

Concerning Article 2, the court states that, from correspondence between the national prosecutor and Chinese authorities, it was claimed that China’s Supreme Court had issued a decision that the death penalty shall not be used. However, it also notes that no such decision has been handed over to the prosecutor or the court.

Concerning Article 3, it notes from material presented to the court, a variety of reports, including the new country report on China from the Swedish Foreign Ministry, that torture, even though prohibited in law, exists to a “not insignificant amount”. It also notes that, as a party member, his case is likely to be handled by the National Supervision Commission, whose system for detention, Liuzhi, indicates the risk of torture is “especially high”. The court concludes that Qiao runs a very high risk of being treated in violation of Article 3.

 

Read our report about the new National Supervision Commission here.

(Swedish) “Sammantaget gör Högsta domstolen bedömningen att det finns starka skäl att tro att QJ, också om man bortser från risken för dödsstraff, löper en verklig risk att utsättas för behandling i strid med artikel 3 i Europakonventionen.”

(English translation) [Altogether, the Supreme Court makes the judgement that there is high likelihood to believe that QJ, even if the use of death penalty can be discounted, would be at real risk of being treated in violation of ECHR Article 3.]

 

Read our report on use of Torture in China here, and our report on use of Solitary Confinement as a method of torture during investigations here.

 

The court also notes that party members have been processed through its own extralegal system for investigations and punishments (Shuanggui), and that in 2018, that system was replaced with the National Supervision Commission and Liuzhi.

It notes that in practical terms the NSC is subject to the command of the Chinese Communist Party, and those investigations are undertaken outside the normal judicial and criminal processes, which, the court states, includes a very high risk of violation of the principle of legal certainty, and for arbitrary application. It also notes the use of broadcasting TV confessions by those detained.

 

For more in use of Forced TV Confessions before trial, read Safeguard Defenders book on the subject, Trial By media.

 

The court reiterates that the risk of torture is higher for those detained outside the judicial system.

The court judges that any trial of Qiao will significantly deviate from a standard that is acceptable in accordance with Article 6 of the ECHR.

The verdict states that, from what is known about the Chinese judicial system, not least the fact that it is not independent and that it is controlled by a political power (the Chinese Communist Party), one may question whether or not it is possible to trust possible assurances about the treatment of Qiao, in line with the ECHR.

The court notes there are reports that China previously offered assurances for other extraditions involving other countries, which it then broke, including promises not to seek the death penalty.

The court furthermore states that there is very limited possibility to check and monitor adherence to any assurances given by China, pointing out, amongst other things, China’s reservation against Article 20 of the Convention Against Torture (which enables independent monitoring by the treaty body).

(Swedish) “De praktiska möjligheterna att, på det sätt riksåklagaren anger, kontrollera att en försäkran från Kinas sida efterlevs är dessutom mycket begränsade”

(English translation) [The practical ability to, in the way the prosecutor states, control and monitor that an assurance given by China is adhered to is very limited]

 

In conclusion, the court states that any assurances given by China concerning these points would not have a deciding impact on concluding whether extradition would be in violation of the ECHR. Hence, extradition of Qiao would violate Articles 2, 3 and 6.

For information on torture, right to fair trial, extralegal detention (Liuzhi, RSDL) and death penalty, the court based its decision on (mentioned) reports and information from the Swedish Foreign Ministry, the U.K.’s Home Office, the U.S. State Department, The Committee Against Torture, Human Rights Watch, Amnesty International, and expert witnesses Eva Pils, Peter Humphrey, and Safeguard Defenders’ Peter Dahlin.

 

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