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Sweden: Supreme Court Refuses Chinese Extradition Request

(July 23, 2019) On July 9, 2019, the Swedish Supreme Court issued a judgment declining to extradite a Chinese man to China because he risked political persecution there. (Press Release, Högsta Domstolen, Extradition to China Is Refused (July 7, 2019), Supreme Court website; Högsta domstolens beslut [Supreme Court Decision], Mål nr [Case No.] Ö 2479-19 (July 7, 2019), Supreme Court website.)

Background

A Chinese citizen, referred to as QJ by the Swedish Supreme Court, is suspected of having embezzled and misappropriated in five separate instances a total of 210 million yuan renminbi (RMB) (about US$30.5 million) in China. (Högsta domstolens beslut at 3.) The man allegedly embezzled RMB3 million (about US$400,000) in 2008, with the other alleged crimes occurring in 2010 and 2011. The 2008 conduct is subject to a 10-year statute of limitations in Sweden, and extradition based on this charge would not be permitted under the Extradition Act, so the Court did not review it as part of the extradition request. (Id. at 14.)

A detention order was issued on October 23, 2011, by Henan Province in China. QJ has been registered with the Swedish National Population Registry as residing in Sweden since 2015. In 2018, China contacted the Swedish government and requested the extradition of QJ. In March 2019, QJ applied for asylum in Sweden, a petition that is still pending. QJ was detained in Sweden from June 25, 2018, to June 19, 2019, when the Supreme Court vacated the detention order. (Id. at 4; Press Release, Högsta Domstolen, Prövning av framställning om utlämning till Kina [Review of Extradition to China Petition] (June 19, 2019), Supreme Court website.)

Swedish Law

Under Swedish law, persons can be extradited to other countries when a person is suspected of, charged with, or convicted of a crime, if the act is also criminalized under Swedish law and there are no bars against extradition. (1, 4 & 10 §§ Lag om Utlämning för Brott (Utlämningslagen) [Act on Extradtition for Criminal Offenses (Extradition Act)] (SVENSK FÖRFATTNINGSSAMLING [SFS] 1957:668), Sveriges Riksdag [Swedish Parliament] website.)

Under section 7 of the Extradition Act, the government may not extradite a person

who, because of national origin, membership in a societal group, religious or political views, or … political conditions risks in the foreign state persecution that targets his life or freedom, or which is otherwise severe[;] or if [he] in that foreign state does not enjoy protection against being sent to a state where he is subject to such a risk. (Id. 7 § (translation by author).)

Swedish Supreme Court’s Analysis

The Court found that the first test—that is, whether QJ is suspected of having committed acts that are criminalized in both China and Sweden (grovt bedrägeri (gross fraud) and grov trolöshet mot huvdman (gross negligence against the principal)—was satisfied. (9 kap. 3 § & 10 kap. 5 § BROTTSBALKEN (BrB) [CRIMINAL CODE] (SFS), Swedish Parliament website; Högsta domstolens beslut at 9–10.) Because Sweden and China have not entered into an agreement on extradition, China must also show that there is probable cause (sannolika skäl) that the crime was committed by QJ, which is the same threshold as for someone to be detained under Swedish law. (9 § 2 para. Extradition Act.) The Court found that this burden had been met. (Högsta domstolens beslut at 12.) The Court then went on to determine if there was anything that prevented the extradition.

Bar on Extradition Because of Risk of Political Persecution

The Supreme Court found that extraditing QJ to China would violate section 7 of the Extradition Act. (Id. at 14.) QJ is currently an active member of the Democracy Party of China, and the Chinese government is aware of this; thus, there is a risk that he would be persecuted on political grounds. (Id.) He therefore cannot be extradited under the Swedish Extradition Act. (Id.) QJ had also claimed that he was active in the 1989 Tiananmen Square protest, but this claim was disregarded by the Supreme Court, which argued that because QJ held senior positions with the Chinese government after this event, the event cannot considered a basis for his assertion that he risks political persecution. (Id. at 13–14.)

Violation of European Convention of Human Rights

In addition, the Court found that extraditing QJ would violate articles 2, 3, and 6 of the European Convention on Human Rights (ECHR). (Id. at 15.)

The Swedish National Prosecutor (Riksåklagaren) argued that it would not violate the ECHR to extradite QJ, provided that the Chinese government offered sufficient guarantees that he would not be punished with death[;] would be afforded a fair trial with the right to efficient defense, protection against torture, and other inhumane treatment[;] and that Swedish government agencies could check on his condition in the future. (Id. at 3–4.)

The Supreme Court noted that guarantees may indeed be relied upon in ensuring that an extradition would not violate human rights protected in the ECHR. However, such guarantees must be accompanied with good reasons for relying upon them. (Id. at 16.) The Court noted that several of the acts QJ is suspected of having committed are punishable with the death penalty under Chinese law. (Id. at 17.) Because of his political affiliations, the Court argued that QJ was not likely to receive a fair trial, and that relying on guarantees provided by the Chinese government was questionable. (Id. at 17–18.) The Court ultimately found that the guarantees from China could not mitigate the risk that QJ’s human rights under the ECHR would be violated. (Id. at 18.)

In sum, according to the Supreme Court, extraditing QJ to China is barred by the Extradition Act and would also violate the ECHR.

Extradition to the United States

QJ is also subject to money laundering charges in the United States and was arrested on June 24, 2019, in connection with these charges. (Press Release, Åklagarmyndigheten [Prosecutor’s Office], Uppdatering i ärende om kinesisk medborgare misstänkt för brott utomlands [Update in the Case of Chinese Citizens Suspected of Crimes Abroad] (June 24, 2019), Prosecutor’s Office website.) The Solna District Court issued a temporary arrest warrant (provisoriskt annhallningsbeslut) for QJ on June 26, 2019, and he is currently being detained. (Kinesisk medborgare fortsatt anhållen [Chinese Citizen Still Detained], UPPSALA NYA TIDNING (June 26, 2019).) The United States must file a formal request for extradition no later than 40 days after the arrest warrant was issued—that is, by August 1. (Id.)