Global Investigations Review - The law and practice of international investigations

Extradition

Last verified on Wednesday 19th June 2019

China

Melody Wang, Nathaniel Reid and Fiona Zhu
Fangda Partners (Beijing)
  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?

  2. Chinese extradition proceedings are governed by domestic law, international conventions and, when applicable, bilateral treaties.

    China became interested in extradition treaties as a means of prosecuting corrupt officials who had fled the country. China signed its first extradition treaty, in 1993, with Thailand, paving the way for a number of treaties with countries in Asia and eastern Europe. The first treaty with a developed Western nation was with Spain in 2005, which was followed by similar agreements with Portugal and France in 2007. Australia signed a treaty with China in 2007; however, it was not enacted.

    In 2000, China passed the Extradition Law of the People’s Republic of China (the Extradition Law), which sets out the general process for extradition and governs any such request. In general, the Extradition Law codifies many of the provisions in the bilateral extradition treaties signed by China, requiring all extradition requests to comply with those requirements.

    China is also a signatory to the United Nations Convention against Transnational Organized Crime and the United Nations Convention Against Corruption.

    In addition to the Extradition Law, bilateral extradition treaties and international conventions, cooperation by private entities within territorial China with foreign criminal investigations, including providing evidence and documents and making employees available for interviews, are governed by the International Criminal Judicial Assistance Law, which was promulgated in 2018. 

    A copy of the Extradition Law in Chinese can be found at http://www.npc.gov.cn/wxzl/gongbao/2001-03/05/content_5123887.htm.

    An official English translation of the Extradition Law can be found at http://www.npc.gov.cn/englishnpc/Law/2007-12/11/content_1383538.htm.

  3. 2.

    Is there a central register of extradition treaties that your state has entered into?

  4. A list of all the countries with which China has entered into a treaty can be found at http://treaty.mfa.gov.cn/Treaty/web/index.jsp. The database is in Chinese; enter 引渡(extradition) in the search bar for a list of the treaties, their status and links to the treaties.

  5. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?

  6. There is no special relationship outside the bilateral treaties and international conventions that China has signed; however, there are some geographical and political trends to China’s bilateral extradition treaties. The first extradition treaties were signed with countries throughout southeast Asia and the former Soviet Union and Russia, but in recent years China has begun negotiating and signing treaties with developed Western countries. In 2007, the Chinese government made a public request for Western countries to sign extradition treaties. 

    By region, the bilateral treaties signed by China are as follows:

    Africa and the Middle East: Tunisia (2001), South Africa (2001), UAE (2002), Pakistan (2003), Namibia (2005), Angola (2006), Iran (2012), Afghanistan (2013), Ethiopia (2014).

    Asia and the Far East: Thailand (1993), Mongolia (1997), Cambodia (1999), Republic of Korea (2000), Philippines (2001), Laos (2002), Indonesia (2009).

    EU member states: Spain (2005), Portugal (2007), France (signed 2007, effective 2015), Italy (signed 2010), Romania (1996 – joined EU 2007), Bulgaria (1996 – joined EU 2007), Lithuania (2002 – joined EU 2004).

    Russia and former Soviet Union: Belarus (1995), Russian Federation (1995), Kazakhstan (1996), Kyrgyzstan (1998), Ukraine (1998), Lesotho (2003), Azerbaijan (2005), Bosnia Herzegovina (2012), Tajikistan (2014).

    Others: Peru (2001), Brazil (2004), Australia (2007 – not ratified), Mexico (2008), Argentina (2013).

  7. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?

  8. The Extradition Law allows for extradition without a treaty when certain requirements are met, including assurances of reciprocity, and China has facilitated extraditions to countries without bilateral or multilateral extradition treaties.

  9. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?

  10. If the requesting state makes reciprocity assurances as per Article 15 of the Extradition Law, extradition is possible on an ad hoc basis.  

    The United States, Germany, the United Kingdom and Canada are some of countries that have relied on ad hoc negotiations to facilitate extraditions when in their own and China’s interests. Notable examples of cases are the 2003 extradition of French national Michel Martin and the 2012 extradition of UK national David Price.

    A common practice between China and countries without a treaty is a ‘disguised’ extradition, namely the use of immigration laws to effectively extradite a person. An example of this is Canada’s eventual deportation of Lai Changxing in 2011 after a lengthy legal battle.

  11. 6.

    For which offences is extradition from your state allowed?

  12. The Extradition Law does not provide categorical guidelines on offences that may or may not be extraditable. Generally, so long as the offence complies with the dual criminality requirement, it is extraditable. Restrictions do apply: when a judgment has not been entered, if the crime is punishable by imprisonment for less than one year or when a judgment has already been entered, if less than six months remain to be served for the crime. 

    However, when a person is wanted for multiple criminal charges that comply with the dual criminality requirements, as long as one of the requested charges complies with the temporal requirements, charges can be brought for all the charges.

  13. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?

  14. The Extradition Law requires that to be eligible for extradition, the offence must be a crime under the law of both China and the requesting state. The Extradition Law does not define what constitutes a crime or on what basis to determine whether both states have the same crime. Bilateral extradition treaties concluded by China provide some guidance on this issue. 

    All bilateral treaties require that the offence must be punishable by imprisonment for one year, or more severe penalties, under both countries’ laws. In addition, all bilateral treaties surveyed include guidance that in assessing dual criminality, one should take an holistic view of the two crimes and, instead of focusing on the specific name or elements of the crimes, look for the similarities in the prohibited conduct. In addition, some treaties expressly state that while signatories to the treaty may not have the same tax, customs or foreign exchange control laws, they should be treated as the same for the purposes of determining dual criminality.

  15. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?

  16. The Extradition Law and the treaties generally do not have provisions directly addressing extraterritorial jurisdiction. However, where China exercises concurrent jurisdiction for the crimes, it is likely that extradition will not be granted.

  17. 9.

    What must be included as part of a valid extradition request made by the foreign state?

  18. A letter of request and accompanying materials must be sent to the Ministry of Foreign Affairs.

    Article 11 of the Extradition Law provides the requirements for a letter of request. In a letter of request, the requesting state must specify the name of the requesting authority; the name, gender, age, nationality, occupation, characteristics of appearance, domicile and residence of the person sought and any other information that may help identify that person, and the category and number of identification documents; the facts of the offence, including the time, place, conduct and outcome thereof; and legal provisions on adjudgment, measurement of penalty and prescription for prosecution. Article 12 requires that the requesting state provide photographs and fingerprints of the person sought and other materials in the requesting state’s possession that could help to identify the person.

    In addition to the requirements in Article 11, under Article 12 the letter of request for extradition must be accompanied by a copy of the arrest warrant, or other document with the same effect, in which extradition is requested for the purposes of instituting criminal proceedings, or a copy of a legally effective written judgment or verdict in which extradition is requested for the purpose of executing criminal punishment, and any necessary evidence and evidentiary materials.

    Article 13 of the Extradition Law requires that the letter of request and supporting documents be officially signed or sealed by the competent authority of the requesting state and accompanied by translations in Chinese or other languages as agreed by the Ministry of Foreign Affairs.

  19. 10.

    What are the stages of the extradition process?

  20. The foreign affairs department of the requesting country first submits the required materials described in question 9 to the Ministry of Foreign Affairs. Upon submission by the requesting state of the letter of request for extradition and accompanying evidentiary materials to the Ministry of Foreign Affairs, the Ministry will examine the request to ensure that it conforms with the technical requirements of the law. If the request fails, the Ministry can grant 30 additional days to correct or supplement the request. After the 30 days, the Ministry can grant an additional 15 days. At this point the request is either granted or turned down without prejudice, allowing the requesting state to resubmit its application at a later date. 

    If the request is approved by the Ministry of Foreign Affairs, the letter of request and accompanying materials are then passed on to the Supreme People’s Court and the Supreme People’s Procuratorate. The Supreme People’s Court will then designate a high people’s court to handle the matter. The public extradition cases available indicate that the Supreme People’s Court often chooses the high people’s court in the city or province where the person is located. The high people’s court examines the request to ensure conformance with the Extradition Law and any treaties that may apply and issues a ruling upon making a decision. The Supreme People’s Court will then review the decision made by the high people’s court and likewise issue a ruling.

    At the same time as the high people’s court is handling the case, the Supreme People’s Procuratorate is evaluating the case to determine whether there are issues to which Chinese judicial organs would have jurisdiction. The Supreme People’s Procuratorate then notifies the Supreme People’s Court and the Ministry of Foreign Affairs of its decision.

    Should the Supreme People’s Court approve the application, it will refer its decision to the State Council (also known as the Central People’s Government, the chief administrative authority in China), a group that includes the heads of each cabinet-level executive department and is chaired by the premier, currently Li Keqiang. The State Council may delegate another group to review the decision.

  21. 11.

    If an initial political decision is required, what factors can be considered?

  22. The Ministry of Foreign Affairs acts as the initial gatekeeper and examines the application for conformance with the technical and formal requirements of the Extradition Law. 

  23. 12.

    Is provisional arrest, before the extradition request is received, possible?

  24. Yes. If the circumstances require urgent action, ‘compulsory measures’ are allowed prior to the extradition request. Article 30 of the Extradition Law governs these compulsory measures and requires that should a formal extradition request not be made within 30 days of the initiation of compulsory measures that they be terminated. Termination of the compulsory measures does not preclude bringing a formal request nor does it preclude re-applying for compulsory measures upon submission of the formal extradition request. 

  25. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?

  26. Provisional arrests can be made to enforce a criminal judgment and a warrant is not needed. The request should be submitted through diplomatic channels from the requesting country to the PRC Ministry of Public Security.

  27. 14.

    What is required to apply for a domestic extradition arrest warrant?

  28. Domestic extradition arrest warrants are not used in China; rather a request for provisional arrest is submitted to the local police with jurisdiction over the person before submitting a formal extradition request. Upon submission of the formal request for extradition, the high people’s court will make a decision on whether to arrest the person for extradition. The court makes its decision in consideration of whether normal extradition would be impeded by not arresting the person.

    If the high people’s court decides not to arrest the person, then it might make a decision to carry out residential surveillance of the person, which would be carried out by the police.

  29. 15.

    What rights does the requested person have while under arrest?

  30. Once compulsory measures have been implemented, the requested person has the right to counsel. The police service in charge of the arrest is obliged to inform the person of their right to counsel.

  31. 16.

    Is bail available in extradition proceedings?

  32. The Extradition Law does not explicitly provide for bail during the extradition process, but it does provide for residential surveillance on conditions of health of the detainee, including age, disease or pregnancy.

    The Criminal Procedure Law contains a person’s rights to bail that may be available in extradition proceedings.

  33. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?

  34. Under the Criminal Procedure Law, in addition to the health concerns included in the Extradition Law, the lack of a threat to society, or a low chance of recidivism that would be posed by releasing the person, are considered when determining whether to grant bail.

    Although likelihood of leaving the country is not expressly contemplated in the Criminal Procedure Law, the court may impose travel restrictions on the person while on bail.

  35. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?

  36. When released on bail, the requested person must remain in the city or county where they reside unless granted permission by the relevant authority, and report any change of address, employer or contact information. The person may not interfere with any witnesses or destroy or corrupt any evidence while on bail. 

    In addition, courts may order the person to stay away from prescribed locations or persons, surrender their passport or travel documents, and to avoid participating in acts as determined by the court.

  37. 19.

      What bars can be raised to resist extradition?

  38. Article 8 of the Extradition Law provides eight mandatory bars to extradition:

    • the person sought is a Chinese national;
    • at the time the request was received, a PRC judicial authority had rendered an effective judgment or terminated criminal proceedings for the extradition offence;
    • the request is made for political offences or asylum has been granted by China;
    • the request or the punishment may be made owing to prejudice regarding race, religion, nationality, gender, political opinion or other such bias or prejudice;
    • the extradition offence is a purely military offence under Chinese law;
    • if the statute of limitations has run out for the offence or if the person has been pardoned;
    • if the person sought has been, or probably will be, subject to torture or other cruel, inhumane or humiliating treatment or punishment by the requesting state; or
    • if a default judgment has been entered against the person, unless the person has an opportunity to have the case retried when present.

    Article 9 provides for discretionary bars to extradition when:

    • China has criminal jurisdiction for the offence and criminal proceedings have either been instituted or preparations are being made to bring such claims; or
    • extradition is incompatible with humanitarian conditions such as the age, health or other conditions of the person sought.

    In addition to the provisions of the Extradition Law, some extradition treaties provide for other considerations and may be of persuasive value to countries without an extradition treaty with China. Although the Extradition Law does not contain double jeopardy provisions, some bilateral extradition treaties do.

  39. 20.

    Does your state extradite its own nationals and residents?

  40. No. Chinese nationals are not allowed to be extradited. There is no such protection for alien residents. The law is silent on situations in which nationality was acquired after the extraditable offence was alleged to have been committed.

  41. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?

  42. Yes. Article 8 paragraphs (4) and (7) of the Extradition Law prohibit extradition when a person may be subject to unfair treatment in judicial proceedings or would probably be subject to torture or other cruel or unusual punishment, respectively.

    It should be noted that while human rights provisions are included in the Extradition Law with heighted human rights protections in some extradition treaties, such as a restriction on the use of the death penalty in extradition cases, these restrictions are not universal among bilateral treaties.

    In addition, while the Extradition Law expressly prohibits transfers if the person may be subject to torture or cruel and unusual punishment, the Extradition Law does not define these terms nor does it provide any specific treaties, multilateral or otherwise, to reference in interpreting this provision. Accordingly, it is likely that this would not impose a serious constraint on extradition proceedings.

  43. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?

  44. While the Extradition Law does not directly address consenting to extradition, under article 35 the police are likely to have discretion to grant residential surveillance of the detained person on the conditions that they cooperate with the requesting country and leave.

    It is theoretically possible that consent could be revoked; however, there are practical issues that could make this difficult for the person.

    Absent extradition detainment, the requested person would not need to obtain any permission to leave China and would be free to do as he or she saw fit.

  45. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?

  46. Article 14 of the Extradition Law provides speciality protections, requiring the requesting state to make specific assurances. Article 14(1) requires the requesting state to provide assurances that the person cannot be investigated for crimes other than those for which extradition has been granted, unless China consents to the additional crime or the extradited person does not leave the requesting country within 30 days of the termination of prosecution or the person returns to the requesting country of his or her own free will.

  47. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?

  48. The Extradition Law is silent as to the factors that the State Council will consider when making a final decision to extradite. However, the State Council is likely to emphasise sovereignty and China’s autonomy in its decisions. Thus, considerations of the relationship between the offence, the requested person and China will tend to figure large in such decisions.

    For example, whether the offence occurred in China or if it affected Chinese nationals or territories would be of particular concern to the State Council.

  49. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?

  50. If a high people’s court approves of the extradition, the Extradition Law allows for the person to submit an opinion to the Supreme People’s Court contesting the high people’s court’s decision.

  51. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?

  52. There are a number of specific deadlines and timelines in the extradition process; the specific deadlines usually are short, such as the time within which the court must inform the requesting state and the requested person of any decisions and the time limit within which the person may submit an opinion in defence of his or her position.

    However, there are no timelines for the key issues in the case, including the Ministry of Foreign Affairs, the high court, the Supreme People’s Court and the State Council making a decision. In addition, throughout this process, the authorities have the ability to make requests for clarification or for further information, which can further draw out the process. Procedural protests by the requested person can also extend the process. 

    Although there are not many public rulings on extradition cases, based on the publicly available resources and discussion with practitioners, it appears that the average extradition process can last up to a number of years from the submission of a formal request to the Ministry of Foreign Affairs until the person is transferred to the requesting state by Chinese police.

  53. 27.

    In what circumstances may parallel proceedings delay extradition?

  54. When a judicial organ (the police, the people’s procuratorate or a people’s court) is conducting criminal proceedings or executing a criminal punishment for reasons other than the extradition, the State Council may decide to postpone the extradition while approving it.

    If postponing extradition could seriously impede the criminal proceedings, the requested person may be temporarily extradited on condition that Chinese proceedings are not hindered by the proceedings in the requesting state, and the requesting state undertakes unconditionally to return the person immediately after concluding the proceedings.

  55. 28.

    What provision is made for legal representation of the requesting state or the requested person?

  56. The requested person is given the right to counsel upon arrest. In addition, the person has the right to submit an opinion in opposition to the extradition proceedings. The Extradition Law does not specify other situations in which legal representation is expressly provided; however, the principles set out in the Criminal Procedure Law would apply.

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Questions

  1. 1.

    Are extradition proceedings regulated by domestic legislation, treaties or both?


  2. 2.

    Is there a central register of extradition treaties that your state has entered into?


  3. 3.

    Do special extradition arrangements apply to certain foreign states, for example states that are geographically proximate, or politically, legally or economically closely linked?


  4. 4.

    Is extradition possible to states that have no bilateral or multilateral extradition treaty with your state if they are party to an international convention?


  5. 5.

    Is extradition possible to states that are not extradition treaty partners as an ad hoc arrangement?


  6. 6.

    For which offences is extradition from your state allowed?


  7. 7.

    Is there a requirement for double (dual) criminality? How is this assessed?


  8. 8.

    How would your state deal with a request that includes an offence for which extraterritorial jurisdiction is claimed?


  9. 9.

    What must be included as part of a valid extradition request made by the foreign state?


  10. 10.

    What are the stages of the extradition process?


  11. 11.

    If an initial political decision is required, what factors can be considered?


  12. 12.

    Is provisional arrest, before the extradition request is received, possible?


  13. 13.

    Must a domestic arrest warrant be issued or can an Interpol red notice be used to carry out a provisional arrest?


  14. 14.

    What is required to apply for a domestic extradition arrest warrant?


  15. 15.

    What rights does the requested person have while under arrest?


  16. 16.

    Is bail available in extradition proceedings?


  17. 17.

    If so, what are the factors that a court will take into account in deciding whether to grant bail?


  18. 18.

    Can the court impose conditions when granting bail? What conditions can be, and usually are, imposed?


  19. 19.

      What bars can be raised to resist extradition?


  20. 20.

    Does your state extradite its own nationals and residents?


  21. 21.

    Are potential breaches of human rights after extradition considered in the extradition process?


  22. 22.

     Can a person consent to extradition, and what is the procedure? Is consent irrevocable?


  23. 23.

    Is there a speciality protection? How is it provided? Does it apply if a person consents to extradition?


  24. 24.

    If there is a political decision at the end of the extradition process, what factors can be considered?


  25. 25.

    What ability is there to appeal against or judicially challenge decisions made during the extradition process? What are the requirements for any appeal or challenge?


  26. 26.

    What are the time limits for the extradition process? How long does each phase of the extradition process take in practice?


  27. 27.

    In what circumstances may parallel proceedings delay extradition?


  28. 28.

    What provision is made for legal representation of the requesting state or the requested person?