This article was originally published in China Daily on October 20, 2013, under the title, "Extradition deal key to nabbing fugitives."
Extradition deal key to nabbing fugitives
By Zhang Yan in Beijing and Chen Weihua in Washington (China Daily)
Updated: 2013-10-20 23:47:08
Signing an extradition treaty with the United States is essential to China's ongoing efforts to capture and repatriate economic fugitives, a senior security official has said.
Yet experts on both sides said an agreement may be unlikely in the short term, as obstacles and misunderstandings remain over China's
judicial system and progress in human rights protection.
According to China's Ministry of Public Security, at least 150 Chinese economic fugitives, many of them corrupt officials, are hiding in the US.
Over the past 10 years, however, just two people wanted on criminal charges have been repatriated.
"We face practical difficulties in getting back fugitives who have escaped to the US due to the lack of an extradition treaty, as well as the complex and lengthy US legal procedures," said Liao Jinrong, director of the ministry's international cooperation bureau.
Some progress has been made in judicial cooperation in recent years, but it has been slow and is still far from enough, he said.
Justice officials from both countries meet every year, in August or September, to discuss major cases, and the ministry says it is attempting to set up an annual high-level meeting, such as with the US Department of Homeland Security, to exchange intelligence with the view to repatriating criminals and recovering illegal asset.
There is a willingness in the US to cooperate, Liao said, "but we hope the US can be more understanding of China's judicial procedures ... and be more active in responding to our request for an extradition treaty, which is essential."
Much of the cooperation between China and the US now is done through Interpol.
Once the organisation issues a red notice, an international arrest warrant for an individual, Chinese police provide information and evidence to US Immigration and Customs Enforcement to request assistance with an investigation.
"Once a case goes to the US authorities, they do not disclose details to us because of privacy concern," said Liao. "Usually it takes several years to get a deportation order, and as long as the criminals pay a lawyer to defend themselves they can constantly appeal to higher courts."
Legal experts agree progress in cooperation is being made, but they flagged several challenges in the relationship that stand in the way of a treaty.
Jerome Cohen, a law professor at New York University and an expert on China's legal system, cited the countries' Mutual Legal Assistance Agreement, signed 13 years ago, and the improvement in "informal, ad hoc" exchanges over the past decade as examples that things have moved forward.
"Both countries would benefit from the further progress that an extradition treaty would represent," he said. "But I don't think conditions are ripe yet for meeting this challenge."
The US already has a treaty with the Hong Kong Special Administrative Region, but reaching the same agreement with the Chinese mainland would require substantial changes to its legal system and human rights policies, he said.
"The most difficult obstacle will be American concerns about use of the criminal justice system to punish people for conduct that is protected in the US, and about the fairness of criminal prosecutions in China," Cohen explained.
"In the present circumstances, it would be politically and legally impossible for the US government to agree by treaty to send anyone to China for prosecution, including Chinese nationals.
"The best that can be done is to negotiate case by case specific guaranties that suit the individual situation," he said.
"My hope is that criminal justice reforms will continue to be made in China."
Experts in China argue that political rather than legal conflicts are holding back an extradition treaty.
In the US, where the executive, judicial and legislative powers are separated, Congress must ratify any extradition treaty.
"However, the US Congress does not trust China's human rights protection, and some of them do not have enough understanding of the Chinese judicial and social development," said Huang Feng, a professor at Beijing Normal University's College for Criminal Law Science.
The US government also wants to cooperate, he said, "so it seems learning how to rid Congress of its old belief about our country and political system is the key to ending the dispute."
Fu Yu, a specialist on international law formerly at Chongqing Southwest University of Political Science and Law, suggested finding common ground in economic investment.
"Congress is also concerned about the US economy," he said. "It should see settling legal problems as tackling economic or commercial problems, which may be easier to negotiate than talking about judicial differences."
Cao Yin contributed to this story.