On 6 October 2022, the European Court of Human Rights (ECtHR) gave its judgment in the case Liu v. Poland (application no. 37610/18). The case concerned the extradition to China of a Chinese national of Taiwanese origins who was charged with international fraud on a grand scale. The applicant alleged that his extradition would result in a real risk of ill-treatment in detention and that he would be denied a fair trial. Additionally, he complained that his detention for over four years pending extradition was unreasonably long and thus arbitrary.
The Court was not persuaded that the applicant’s allegations were duly examined by the Polish authorities and found itself compelled to examine whether the applicant would be exposed to a real risk of ill-treatment proscribed by Article 3 of the Convention in the event of his extradition to China.
The Court held that the assessment of a real risk of ill-treatment should begin with the examination of the general situation to evaluate whether the mere placement of the applicant in a Chinese detention facility would subject him to a real risk of ill-treatment contrary to Article 3 ECHR. It observed that China had not ratified the International Covenant on Civil and Political Rights (ICCPR) and was not a Party to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and had not recognised the authority of the United Nations Committee against Torture (CAT) to perform an inquiry. As a consequence, individuals who alleged that their human rights had been breached did not have recourse to any independent international protection mechanism, or for any independent international body to perform an onsite inquiry in China without the latter’s invitation.
In addition, the Court found several significant shortcomings remained in place regarding the prohibition and prevention of torture and attached considerable weight to reports issued by various United Nations bodies as well as by international and national governmental and non-governmental organisations. Finally, the Court did not find the Chinese informal declarations (without any diplomatic assurances) given to the Polish government to be a sufficient guarantee for the applicant’s rights. In conclusion, the Court considered that the extent to which torture and other forms of ill-treatment are credibly and consistently reported to be used in Chinese detention facilities and penitentiaries may be equated to the existence of a general situation of violence and therefore the applicant was relieved from showing specific personal grounds of fear. Accordingly, the Chamber held that the extradition of the applicant to China would constitute a violation of Article 3 of the Convention.
Regarding the alleged violation of Article 5(1) of the Convention for the detention pending extradition for over four years, the Court concluded that the domestic authorities failed to act with due diligence and ensure that the length of the applicant’s detention did not exceed the time that could be reasonably required for the purpose pursued and, consequently, the applicant’s detention had not been lawful within the meaning of Article 5(1) ECHR and there had therefore been a violation of that provision.