The case of Kyung Ep Kim v. New Zealand. The views of the UN Human Rights Committee dated December 20, 2023. Communication No. 4170/2022.
In 2022, the author of the communication was assisted in preparing a complaint. The complaint was subsequently communicated to New Zealand.
The author claimed that the State party violated his rights under articles 7, 9, 10 and 14 of the Covenant in several aspects, including by placing him in custody and agreeing to extradite him to China. The Committee concluded that the information provided to it did not indicate a violation of the author's rights under article 7 of the Covenant, but demonstrated a violation of the author's rights under article 9, paragraph 1, of the Covenant.
Legal positions of the Committee:
article 7
The Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, which refers to the obligation of States parties not to extradite, deport, expel or otherwise expel a person from their territory when there are serious grounds to believe that there is a real risk of irreparable harm, such as that provided for in articles 6 and 7 of the Covenant (paragraph 12). The danger must be of a personal nature, and at the same time there must be serious grounds for establishing the existence of a real danger of irreparable harm. In doing so, all relevant facts and circumstances must be taken into account, including the general human rights situation in the country to which the author is facing expulsion. Considerable weight should be given to the assessment carried out by the State party, and the examination or assessment of facts and evidence to determine the specified danger should generally be carried out by the authorities of the States parties to the Covenant, unless it is established that such an assessment was clearly arbitrary or amounted to an obvious error or denial of justice (paragraph 8.3 of the Considerations).
The Committee notes that the Covenant does not explicitly prohibit sending States parties from relying on diplomatic guarantees provided by requesting States in the context of expulsion or extradition in the case of non-refoulement claims. The Committee refers to its jurisprudence according to which reports of torture and widespread human rights violations in the receiving State do not in themselves constitute sufficient evidence that a person would personally be subjected to torture if extradited to that State, regardless of the availability of assurances. Nevertheless, the existence of safeguards, their content, and the existence and application of enforcement mechanisms are important to address the general question of whether there is actually a real risk of torture. Safeguards should include a monitoring mechanism and be supported by practical arrangements to ensure their effective implementation by sending and requesting States. However, the absence of such a mechanism does not in itself indicate a violation of article 7 of the Covenant by the requested State in extradition, since all relevant circumstances must be taken into account (paragraph 8.4 of the Considerations).
Article 9, paragraph 1, of the Covenant
Article 9, paragraph 1, of the Covenant provides that no one may be arbitrarily arrested or detained. The Committee refers to its general comment No. 35 (2014) on freedom and personal integrity, in which it stated that arrest or detention may be in accordance with domestic law, but nevertheless be arbitrary (paragraph 12). The concept of "arbitrariness" should not be equated with the concept of "illegality", but should be interpreted more broadly, including elements of unacceptability, injustice, unpredictability and non-compliance with procedural guarantees. The Committee considers that, in an overall assessment of the arbitrariness of the length of the extradition procedure, it is necessary to consider whether the State party conducted this procedure with due diligence, as well as the reasons for any delays (paragraph 8.17 of the Views).
The Committee's assessment of the factual circumstances of the case:
article 7
The Committee noted that the Chinese Government had requested the extradition of the author in the context of criminal proceedings under article 232 of the Chinese Criminal Law relating to murder. The State party received guarantees from the Chinese Government and argued that they were sufficient to protect the author's rights as enshrined in the Covenant, while at the same time ensuring the rule of law by facilitating the process of criminalizing murder. The Committee took note of the author's position that no one should be extradited to China because human rights are not respected in that country and torture is widespread and systematically used in the law enforcement system, as well as because the assurances received are not effective enough. The Committee took into account the various communications submitted by the author in support of his position that these guarantees would not be able to protect him (paragraph 8.2 of the Views).
The question of whether the authorities of the State party correctly assessed the risk of torture to the author in the event of his extradition to China should be decided on the basis of the information that was available to the authorities of the State party at the time of their decisions on his extradition (paragraph 8.4 of the Views).
The Committee noted that the Extradition Act of 1999 provided for both mandatory restrictions on extradition in the presence of a significant risk of torture and discretionary restrictions on extradition in the event of extraordinary or insurmountable circumstances. The Committee recalled that the guarantees provided, in particular, stated: since China is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Government of the country will comply with the Convention to ensure that the author will not be subjected to torture or other cruel, inhuman or degrading treatment or punishment, and will fulfill these guarantees. The guarantees are in writing and are of an official nature and were provided before, during and after face-to-face meetings in New Zealand and China with senior representatives of the Chinese Government, including the Ambassador, an assistant judge of the Supreme People's Court and officials from the Ministry of Foreign Affairs, the Ministry of Public Security, the Supreme People's Prosecutor's Office and the Ministry of Justice. The Committee considered that these guarantees were sufficient and specific (paragraph 8.5 of the Views).
The Committee noted that the State party had made it clear during face-to-face meetings between senior officials that the issue of extradition and the sufficiency of any guarantees would be decided only by the Minister of Justice and that their provision was not a guarantee that the author would be extradited. The Ministers of Justice and the courts examined the author's arguments regarding the mandatory and discretionary grounds for refusing extradition, including his claim that safeguards and the monitoring mechanism were ineffective. In assessing his claims, the authorities examined relevant human rights treaties and judicial practice, including that of the Human Rights Committee. Having received the relevant instruction, the Minister of Justice requested and received additional information and guarantees from the Chinese Government, and then re-examined the issue of the author's extradition in the light of this new information, including consulting with the Ministry of Foreign Affairs and Trade regarding monitoring and guarantees. The Ministry of Justice stated that officials would begin organizing the first visit as soon as the date of the author's extradition was confirmed (paragraph 8.6 of the Considerations).
According to these guarantees, in case of extradition, the author will be detained and serve a prison sentence in Shanghai, where the consular offices of the State party are located; during the investigation stage, diplomatic or consular representatives of the State party will be able to visit the author every 48 hours or more often if the author requests additional visits or visits; any additional The visits requested by the author will be arranged as soon as possible; During all periods of his detention, including pre-trial detention, representatives of the State party will be informed in a timely manner about the place of his detention and any changes therein; during all periods of the author's detention, including pre-trial detention, the author will have the opportunity to contact representatives at any reasonable time the State party to provide information on his treatment, and he will be given the opportunity to do so by fax, e-mail or telephone; such contacts will not be censored or edited in any way; during all periods of the author's detention, including pre-trial detention, representatives of the State party may visit the author at the place of his detention and be accompanied by one or more of the following persons, who will be selected by diplomatic or consular representatives of the State party: an interpreter, a medical professional authorized to carry out professional activities in China, and an expert in the field of law, licensed to carry out professional activities in China; such regular visits will be allowed every 15 days, and additional visits will be organized at the request of representatives of the State party; during the visit, an opportunity will be provided to personally talk with the author, without supervision, in a safe place; the right of detainees to receive medical care is guaranteed; antidepressants and sleeping pills will be provided free of charge to the author; if During the visits, the author will be given the opportunity to undergo, with his consent, a medical examination by specialists selected by representatives of the State party; These medical examinations will be conducted privately, although, at the request of representatives of the Chinese Government, a medical professional of their choice may be present at such examinations; during the visits, access will be provided to those parts of the detention facility to which the author has access, including his living quarters; representatives of the State party will be given the opportunity to meet in private with other persons, including prison staff, prosecutors, medical staff and, with the author's consent, his lawyer; Representatives will also have access to other information related to the treatment of the author and the conditions of his detention; no retaliation measures will be taken against persons providing representatives of the State party with information about the treatment of the author, if this information is provided in good faith; representatives of the State party will be provided with complete information within 48 hours and unedited recordings of all pre-trial interrogations and court hearings concerning the author; If any issue arises related to the interpretation or application of guarantees, representatives of both States will immediately begin consultations to resolve this issue in a manner satisfactory to both parties (paragraph 8.7 of the Considerations).
The Committee took note of the decision of the Ministry of Justice that the Ministry of Foreign Affairs and Trade would indeed be able to visit the author, as provided for in the guarantees, monitor compliance by the Chinese authorities with their obligations and transmit information to third parties in case of non-compliance with these guarantees, which seems unlikely. The Minister of Foreign Affairs of the State party instructed his staff to visit the author as often as necessary to ensure his well-being during the investigation phase, and stated that a special resource would be allocated at the State party's Consulate in Shanghai to ensure visits every 48 hours or even daily, if necessary. The Committee pointed out that the State party's consular officers have experience in conducting monitoring visits to places of detention in China, including in relation to their own citizens and citizens of other countries (paragraph 8.8 of the Views).
The Committee noted that the State party's authorities did not dispute the author's claims about the general risk of torture by law enforcement agencies in China and did not limit themselves to referring to the provisions of Chinese law, which, in particular, prohibit torture to obtain confessions and provide for the possibility of video or audio recordings of pre-trial interrogations in the case of certain serious crimes. On the contrary, after reviewing the relevant expert opinions, the State party concluded that, given these data, certain guarantees are necessary and that, in the light of these guarantees, the author does not face a personal risk of being subjected to torture, taking into account his individual circumstances. The Committee pointed out that, although the author disputed the effectiveness of the safeguards in his case, he did not claim that he had previously been subjected to torture or ill-treatment by the authorities in China, and did not provide information indicating that he might have faced such treatment due to special vulnerability, for example, his ethnicity, nationality or gender activities (paragraph 8.9 of the Considerations).
The author claimed that he was personally in danger of being tortured because he was accused of committing murder and resisted his extradition, which increased the political significance of his case. The Committee noted that the State party's courts had examined these claims and indicated that, although the extradition may have had a political component, the murder in the alleged circumstances was not political, but criminal in nature. The Committee considered that, given the guarantees provided and the monitoring mechanism, it had not been established that any political considerations, including increased public interest in the author's case, had harmed the investigation or increased the risk of being subjected to torture in China (paragraph 8.10 of the Views).
Regarding the author's claim that he was at risk of psychological or undetectable torture, the Ministry of Justice also considered whether it would be able to detect torture if it was used and, before deciding on his extradition, requested additional information on the frequency of visits to the author and the timing of access to records of pre-trial investigations. At the final stage of the trial, the Supreme Court granted the author's request to provide new evidence in the form of conclusions on the conditions of detention in China recently. The opinions were presented at the end of 2021 by several professors and a consulting lawyer who practiced law in China until 2003, and they, among other things, expressed concern about the established practice of torture in China, as well as about the fact that it is possible to rely on the guarantees provided only with a high degree of conditionality. The Court took into account the concerns expressed and, taking into account the previously mentioned factors, concluded that there were no serious grounds to believe that the author would be in danger of being subjected to torture (paragraph 8.11 of the Considerations).
Having examined the content of the decisions of the national authorities and the guarantees provided, the Committee concluded that the State party had sufficiently considered the author's specific arguments at various stages of the proceedings as to why he was at risk of treatment contrary to article 7 of the Covenant in China. The Committee found that the State party's authorities had acted with due diligence and attention in requesting diplomatic guarantees. The Committee also drew attention to the fact that the authorities did not ignore the author's arguments or evidence regarding the conditions of respect for human rights in China and the effectiveness of diplomatic guarantees from China, but assessed them taking into account a number of other elements, including expert opinions sought by the national authorities, the jurisprudence of the Committee, courts and other human rights bodies as well as the State party's own experience in dealing with China in similar cases (paragraph 8.12 of the Views).
The Committee noted that the author had failed to prove that the State party's decision to extradite him after it had concluded that he was not at significant risk of being subjected to torture in China was manifestly arbitrary or amounted to a clear error or denial of justice (paragraph 8.13 of the Views).
Article 9, paragraph 1
The Committee noted that the author had the opportunity to challenge the legality of his detention throughout the proceedings, both from a legal and practical point of view. However, the Committee noted the High Court's decision of 3 December 2014 - in its decision on the author's second habeas corpus application - regarding the warrant issued by the District Court on 29 November 2013 to extend the author's detention in accordance with section 70 of the Extradition Act 1999. The High Court considered that the warrant expired when, on 12 September 2014, the author filed an application to withdraw his appeal against the decision of the District Court to declare him extraditable. Although the High Court recognized that the issue of the expiration of the warrant was irrelevant, since on 2 December 2014 the District Court issued a new warrant on the basis of article 26, paragraph 1, of the said law, the Committee noted that the State party had not commented on the conclusion of the High Court that the validity of the warrant issued on 29 November 2013 for based on article 70 of the Law, expired before the issuance of a new warrant. The Committee concluded that, since the information provided to it indicated that the author's detention from 12 September to 1 December 2014 had no legitimate grounds, it was arbitrary, in violation of article 9, paragraph 1, of the Covenant (paragraph 8.19 of the Views).
With the exception of the above period and after examining the detailed chronology of events and the reasons for the decisions that were presented to it, the Committee considered that the author's detention was lawful and justified by the factors mentioned above. The Committee stated that the author's decision not to leave New Zealand after his release on bail did not mean that his detention pending extradition was arbitrary. The Committee found that, with the above exception, there was no reason to believe that the State party's authorities intentionally or negligently prolonged the author's detention or otherwise failed to exercise due diligence in carrying out the extradition procedure in accordance with domestic law while the author was in custody. The Committee recalled that the author had several opportunities to challenge his detention in trials that led to reasoned decisions by several courts justifying his continued detention (paragraph 8.20 of the Views).
The Committee concluded that the author's detention from 12 September to 1 December 2014 inclusive was arbitrary and violated article 9, paragraph 1, of the Covenant, while the remaining periods of his detention and release on restrictive bail were not arbitrary and did not violate article 9, paragraph 1, of the Covenant (paragraph 8.21 Considerations).
The Committee's conclusions: The facts presented did not indicate a violation of the author's rights under article 7 of the Covenant, but demonstrated a violation of the author's rights under article 9, paragraph 1, of the Covenant (paragraph 9 of the Views).