Photo by Jernej Furman
Red Notice Monitor has obtained an (unofficial) English translation of the original decision (in Greek) of District Judge Nathaniel sitting in the Larnaca District Court in the case of Re Ma Chao (Application no. 1/2021). The District Court in Cyprus refused to extradite Mr Chao, a Chinese citizen accused of fraud to China to face criminal prosecution in a judgment handed down in December 2022.
Mr Chao arrived in Cyprus in February 2021 where he was arrested because of an Interpol Red Notice issued by China. The Red Notice stated he was sought by Beijing police in connection with an allegation that he and other members of a criminal gang were responsible for orchestrating a multi-million-yuan Ponzi scam. Pursuant to a treaty with Cyprus the Chinese Government then filed a request for his extradition.
The Larnaca decision - which is exhaustive and runs in excess of 80 pages - is particularly noteworthy for several reasons.
Firstly, the Court arrived at its conclusion after hearing from a battery of lawyers sent by the PRC including leading experts on the Chinese judicial system. The Chinese delegation included a Professor at the Peking University School of Law, who had previously served as Inspector General, and senior counsel at the Ministry of Justice in China, and as a member of the advisory committee of experts of the supreme People’s Prosecution and who was the author of numerous books on general legal issues, including the issuance of fugitive warrants. It follows from the Court’s decision – essentially that China’s was non-compliant with international fair rial and human rights standards - that the Judge rejected many of the submissions advanced by the PRC’s legal team.
Secondly, the judgement warrants attention because of its detailed examination of the operation of fair trial rights in China. To that extent, the Larnaca Court went further than the ECHR in Liu v Poland (Application no. 37610/18, October 6, 2022) in ruling on the question of whether Mr Chao would receive a fair trial on return to China. The ECHR in Liu declined to consider this issue having identified potential breaches of Article 3 (violation to the right to freedom from torture and mistreatment.) Importantly, the Larnaca Court placed great emphasis on evidence presented to it that Mr Chao would only be allowed access to a lawyer after his first interrogation in deciding that his Article 6 Rights would likely be compromised if he was returned.
Third, the Court also found a real risk that Mr Chao would be subject to prolonged and arbitrary detention on his arrival in China without effective judicial supervision. This risk was enhanced because of his religious beliefs as a member of the Falun Gong and constituted a breach of Article 5 of the ECHR (the right to freedom from arbitrary and illegal detention).
Finally, the Larnaca decision reiterated the position taken in Liu v Poland by the ECHR in finding that there was a substantial risk that Mr Chao would be mistreated or tortured in violation of Article 3 if he was sent back to China.
Ma Chao will make painful reading for the authorities in Beijing. It is one of a series of recent high-profile decisions from high level European Courts where extradition requests from China have been refused. It is particularly embarrassing for China given that an extradition treaty with Cyprus was only signed in 2018.
Each of these recent decisions also featured non-political actors accused of economic crimes and turned on findings that torture and mistreatment of detainees was endemic in the Chinese criminal justice system. The implications of these decisions are likely to be wide ranging and will be considered in more detail in an upcoming Red Notice Monitor blog.