CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        Application No. 35218/97                     by MANDUGEQI and JINGE                     against Poland          The European Commission of Human Rights sitting in private on 19 September 1997, the following members being present:             Mr.   S. TRECHSEL, President           Mrs. G.H. THUNE           Mrs. J. LIDDY           MM.   E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS                L. LOUCAIDES                J.-C. GEUS                M.P. PELLONPÄÄ                B. MARXER                I. CABRAL BARRETO                B. CONFORTI                I. BÉKÉS                J. MUCHA                D. SVÁBY                A. PERENIC                C. BÎRSAN                P. LORENZEN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV             Mr.   H.C. KRÜGER, Secretary to the Commission          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 March 1997 by MANDUGEQI and JINGE against Poland and registered on 7 March 1997 under file No. 35218/97;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 14 May      1997 and the observations in reply submitted by the applicants      on 20 May 1997;   -     the applicants' letter of 5 August 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicants are a couple of Chinese citizens born, respectively, in 1943 and 1954.   They are represented before the Commission by Mr. Wojciech Hermelinski, a lawyer practising in Warsaw.        The facts of the case, as submitted by the parties, may be summarised as follows:     Particular circumstances of the case:        On 24 July 1994 the Chinese Security Services issued warrants of arrest against the applicants on charges of fraud under Article 152 of the Chinese Act on Penalties committed by misappropriation of property in sum of approximately 10 million juan, i.e. 2,1 million US $.        On 10 August 1996 the applicants were apprehended by the police at the border and arrested at the Warsaw Ok*cie International Airport by virtue of an international warrant of arrest issued by Interpol in November 1994 upon request of the Chinese branch of Interpol.        On 11 August 1996 the Warsaw Regional Court remanded them in custody with a view to extradition on suspicion of fraud.        On 2 September 1996 the Chinese Ministry of Foreign Affairs submitted a request for extradition to the Polish Government.        On 14 October 1996 the applicants were heard by the Warsaw Regional Court within the framework of the extradition proceedings.        On 7 February 1997 the Warsaw Regional Court pronounced an opinion as to the admissibility of the applicants' extradition.   The Court considered that it transpired from the documents submitted with the request for extradition that the charges against the applicants were punishable under the provisions of the Polish Criminal Code. Thus, the necessary requirement for extradition, i.e. that the acts concerned were punishable in both countries, was complied with.   The Court went on to state that the condition of reciprocity between Poland and China was not met as there was no treaty on extradition between Poland and China and that there had not been any case of extradition between these countries in recent years.   Thus it could not be established that China would ensure reciprocity.        The Court further considered that the applicants' extradition would be in breach of Article 3 of the Convention.   It transpired from the explanations given by the applicants before the Court and from the materials submitted by Amnesty International, in particular from its Report for 1995, that there were serious grounds for believing that, if extradited, the persons extradited, regardless of the character of their offence, would be subjected to treatment contrary to Article 3 of the Convention both during the investigations and during the execution of a prison penalty.   The Court concluded that in its opinion the applicants' extradition would not be compatible with the Polish legal order insofar as it incorporated the international conventions ratified by Poland and in particular the European Convention on Human Rights.        On 11 February 1997 the Warsaw Regional Prosecutor lodged an appeal against the opinion.        On 7 March 1997 the Warsaw Court of Appeal quashed the opinion of 7 February 1997 and pronounced an opinion to the effect that the applicants' extradition would be admissible.        The Court observed that in the request for extradition it had been stated that from 1987 to 1993 the applicants had run a commercial company in China as its board director and executive director, respectively.   They had defrauded numerous banks, companies and private persons for a sum equivalent to approximately 2 million US $ by taking various loans on which the same property served as a collateral, by accepting payments for merchandise which they had subsequently not delivered, by failing to pay for merchandise and for taking loans which had not been repaid.   The Court further had regard to the information submitted in the extradition request, i.e. that criminal proceedings had been instituted against the applicants in which the public prosecutor had conducted a "thorough investigation as to the frauds committed" by them, and to the summary of facts, supported by evidence, as to the offences with which the applicants had been charged which had been annexed to the extradition request.   The Court also noted that in the course of the appellate proceedings before it the Chinese Ministry of Foreign Affairs had submitted a further assurance that no more severe penalty would be imposed on the applicants than that foreseen for an identical offence in the Polish Criminal Code.        The Court finally concluded that, having regard to the evidence submitted by the Chinese authorities in the extradition request and to the applicants' submissions before the Regional Public Prosecutor and before the Warsaw Regional Court, there were no sufficient grounds for believing that, if extradited, they would run a risk of treatment contrary to the Convention.   It was true that in the past Mr. Manduqegi had been convicted of attempted illegal crossing of the border and had served a prison sentence.   However, at a hearing before the Warsaw Regional Court on 14 October 1996 he had stated that the issues relating to his conviction had been settled between him and the authorities and that, as a result, he could subsequently become a civil servant.   Mr. Manduqegi had presented to the Regional Court his large- scale business activities in a detailed manner and stated that certain of his undertakings had no precedent in communist China.   He had made it clear that his business success had not been impeded in any way by the Chinese authorities as shown by, inter alia, a letter of the Chinese Civil Aviation Committee of 11 March 1993 in which certain deference in respect of his business projects was shown.   Mr. Manduqegi had also acknowledged that he had been an informant of the secret police for the last seventeen years and that his wife's cooperation with the police was only slightly shorter.   It was, inter alia, due to this cooperation that they could have obtained passports and left China in 1993.   In the light of these considerations the Court concluded that neither the applicants' actual social position nor the character of the charges against them, which were far from being of a political character, would justify the conclusion that they ran a risk of being subjected to such an extreme form of discrimination as to fall within the scope of Article 3 of the Convention.        The Court of Appeal further observed that it had not disregarded the arguments submitted by the applicants, based on the reports of Amnesty International.   It was true that it transpired from these documents that the Chinese administration of justice was particularly oppressive in that, inter alia, there were a very large number of capital penalties being imposed and executed, that unacceptable methods were being applied with regard to persons against whom criminal proceedings were instituted and that the deprivation of liberty was being imposed without a judicial decision.   However, the Court noted that it should be borne in mind that in the present case the Chinese authorities had undertaken that the applicants' case would be examined by a court, that capital punishment would not be imposed and that no penalties would be imposed which would be more severe than those imposed for the same offences under Polish law.   Therefore the opinion of the Regional Court as to the risk of treatment contrary to Article 3 of the Convention was not justified as the Court had based it only on generalisation of findings made by Amnesty International in relation to all criminal proceedings conducted in China.   The Regional Court had failed to indicate specific characteristics of the applicants' case from which it would necessarily follow that their human rights would be breached in the criminal proceedings against them in China. Moreover, the Regional Court had entirely disregarded the undertakings as to the applicants' fate made by the Chinese authorities in the extradition request.   The Court concluded that there were no legal obstacles to the applicants' extradition.        On 18 March 1997 the Warsaw Court of Appeal prolonged the applicants' detention pending extradition until 20 July 1997.        On 13 April 1997 the applicants lodged an appeal in cassation with the Supreme Court.        On 29 July 1997 the Supreme Court rendered a decision in the cassation proceedings.   The Court considered, inter alia, that under Article 1 of the Convention the States Parties were obliged to secure to everyone within their jurisdiction the rights and freedoms set out in the Convention. Article 3 of the Convention prohibited torture, inhuman and degrading treatment.   Thus, a decision by a Contracting State to extradite a fugitive might give rise to an issue under Article 3 of the Convention.   It was not necessary to have established with certainty that the extradited person would be subject to treatment contrary to this provision.   It was sufficient that there was a probability ("prawdopodobienstwo") that such treatment might occur. In the present case the factual findings of the courts in this respect did not differ:   the Regional Court had concluded that there were sufficient grounds for believing that, if extradited, the applicants would run the risk of treatment contrary to Article 3 of the Convention, whereas the Court of Appeal had, on the basis of the same materials,   concluded that it had not been shown that the applicants could be exposed to such treatment.   In the light of the evidence before that Court, the interpretation of the applicable substantive law, i.e. Article 3 of the Convention, could not lead to any conclusion other than that the conclusion that the applicants' extradition would have been unlawful.     Relevant domestic law        Under Article 152 of the Chinese Criminal Code the offence of aggravated fraud is liable to not less than five years and not more than ten years of a fixed-term imprisonment; in especially serious cases, the sentence is to be not less than ten years of fixed-term imprisonment or life imprisonment, and the offender's property may in addition be confiscated.        Under Chapter 56 of the Polish Code of Criminal Procedure it is the General Prosecutor (Minister of Justice) who is competent to take a decision on extradition.   Before this decision is taken, the Regional Court rules on the admissibility of extradition.   An appeal lies against its opinion with the Court of Appeal.   If the opinion on the admissibility is negative, the General Prosecutor is bound by it.   If the court states that there are no legal impediments to extradition, the final decision lies within the discretionary powers of the General Prosecutor.        Under Article 534 para. 1 of the Code of Criminal Procedure the request for extradition shall be refused if the person concerned is a Polish citizen or has been granted asylum in Poland.        Under Article 534 para. 2 the extradition may be refused if the criminal offence was committed within the territorial jurisdiction of Poland; if criminal proceedings concerning the same act committed by the same person are pending, were pending or ended by a final decision in Poland; if under the law of the requesting State the offence concerned is subject to a penalty not exceeding one year or to a lesser penalty, or the penalty imposed does not exceed this period; if pursuant to Polish law the offence is subject to private prosecution; and if the requesting State does not guarantee reciprocity.     COMPLAINTS        The applicants complain under Article 3 of the Convention that their extradition to China would expose them to a risk of being subjected within the framework of the criminal proceedings against them to torture or to inhuman or degrading treatment as the Chinese system of criminal procedure does not offer any relevant safeguards.   They submit that inhuman or degrading punishment would be inflicted on them when they are convicted.   They submit that their case should be assessed against the general background of the human rights situation in China with regard to criminal proceedings and execution of penalties.        The applicants complain under Article 6 of the Convention that the extradition proceedings were unfair in that the additional submissions of the Public Prosecutor to the Court of Appeal in reply to the applicants' observations to the Court were not communicated to them.   Consequently, they did not have an opportunity to submit any relevant comments.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced and registered on 7 March 1997.        On 7 March 1997 the Commission's President decided to apply Rule 36 of the Commission's Rules of Procedure and to communicate the case to the respondent Government under Article 3 of the Convention.        The Government submitted their observations on 14 May 1997.   The applicants replied on 20 May 1997.        In a letter of 5 August 1997 the applicants informed the Commission that in view of the Supreme Court's decision of 29 July 1997 they wished to withdraw their case.     REASONS FOR THE DECISION        The Commission notes that in view of the Supreme Court's decision to the effect that the extradition of the applicants' to China would have been unlawful the applicants have informed the Commission that they wish to withdraw their case.        In these circumstances, the Commission concludes pursuant to Article 30 para. 1 (a) and (c) of the Convention that the applicants do not intend to pursue their application and that it is, therefore, no longer justified to continue the examination of the petition. Moreover, there are no reasons of a general character affecting respect for Human Rights as defined in this Convention which require the further examination of the application by virtue of Article 30 para. 1 in fine of the Convention.        For these reasons, the Commission, unanimously,        DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.             H.C. KRÜGER                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission