Legal Assessment of the Extradition Treaty between Turkey and the People’s Republic of China
Timuçin KöprülüThe Extradition Treaty between the Turkish Republic and the People’s Republic of China stirred up lively debates both domestically and internationally, particularly with regards to the Uighur Turks. These debates mainly revolved around political aspects and the consequences of ratifying the Treaty rather than its legal implications. Although the political aspects and consequences of the Treaty are also significant, this study will focus on the legal aspects, which have not been extensively explored. The Extradition Treaty, which has not been ratified by Turkey yet, is similar to treaties that Turkey has signed with other countries both in its form and content. The national legislation of both countries, the United Nations documents on extradition, the European Convention on Human Rights and the case law related to the European Convention on Human Rights (ECHR) and the Turkish Constitutional Court, particularly on the case of Uighur Turks, will be analyzed in an attempt to elaborate the ratification process and the rejection of the Extradition Treaty. In addition, reports from international human rights organizations and states on human rights violations in China, which were also referred to in court decisions, and the extradition challenges that China has experienced with other states in the past will also be examined to provide some guidance to legal practitioners regarding relevant extradition requests.
Türkiye – Çin Halk Cumhuriyeti Suçluların İadesi Andlaşmasına Dair Hukuki Bir Değerlendirme
Timuçin KöprülüTürkiye ile Çin Halk Cumhuriyeti arasında imzalanan iade andlaşması gerek iç kamuoyunda gerek dış kamuoyunda özellikle Uygur Türkleri meselesi nedeniyle büyük tartışmalar yaratmıştır. Bu tartışmalar genelde Andlaşma’nın hukuki yönünden ziyade siyasi boyutlarına ve sonuçlarına yöneliktir. Andlaşma’nın siyasi boyutları ve sonuçları elbette önemli olmakla birlikte çalışmamızda pek de gündeme gelmeyen hukuki yapısı incelenecektir. Henüz Türkiye tarafından onaylanması bir kanunla uygun bulunmayan Andlaşma, Türkiye’nin diğer devletlerle yaptığı iade andlaşmalarına hem şekil hem de içerik olarak benzemektedir. Bahis konusu Andlaşma iadenin kabulüne ve reddine dair şartları bakımından değerlendirilirken, iki devletin iç hukuk düzenlemeleri, iadeyle ilgili Birleşmiş Milletler belgeleri, AİHS ve özellikle Uygur Türkleri meselesiyle ilgili Anayasa Mahkemesi ve AİHM içtihatları dikkate alınacaktır. Bunun yanında yargı kararlarına da yansıyan çeşitli uluslararası insan hakları örgütlerinin ve devletlerin ÇHC’deki insan hakları ihlallerine dair raporlarına ve ÇHC’nin diğer devletlerle yaşadığı bazı iade sorunlarına uygulayıcılara yol göstermek maksadıyla kısaca değinilecektir.
The Extradition Treaty between Turkey and the People’s Republic of China was signed at Beijing on the 13th May 2017. Chinese National People’s Congress ratified the Treaty on the 26th December 2020. However, Turkey has not ratified the Treaty, but it is expected to do so soon.
The Extradition Treaty consists of 22 articles that specify the obligation to extradite, extraditable offenses, mandatory and discretionary grounds for refusal, provisional arrest, expedited extradition, surrender of the person and property, transit, and rule of specialty.
In form, the Treaty is based on the Model Treaty on Extradition that was drafted by the United Nations General Assembly.
The terms and conditions for extradition are specified under provisions on extraditable offenses and the mandatory and discretionary grounds for refusal in the Treaty. In this regard, if a request is made for the extradition of a suspect or defendant during an investigation process or prosecution phase, the maximum sentence that can be implemented is at least one year or a more severe sentence that is provided for under the laws of both Parties. For the extradition of convicts—that is, people with final verdicts of conviction—the sentence limitation provided for in Article 2(2)(b) of the Treaty is a minimum six months.
Political offenses and granting asylum are stipulated as mandatory bars to extradition. However, taking or attempted taking of the life of a Head of State, Head of Government, or a member of his/her family are not considered as political offenses under any international convention to which both Parties are parties. Extradition is also not allowed if the party being requested to effect it has substantial grounds for believing that the request for extradition has been made for the sole purpose of prosecuting or punishing the person sought on an account of that person’s race, sex, religion, nationality, or political opinion, or that person’s position in judicial proceedings may be prejudiced for any of these reasons. Like political offenses, extradition requests on military offenses are also not allowed. Nationality, lapse of time, pardon or amnesty, and judgment in absentia (if the requesting party does not guarantee that the person sought has an opportunity to have the case retried in their presence after extradition) are also bars to extradition. Finally, extradition requests cannot be granted if the penalty that may be imposed or executed by the requesting party for the offense for which the extradition is sought is in conflict with the fundamental principles of the laws of the requested party, unless the requesting party provides such assurances as the requested party may consider sufficient that these principles shall not be violated. Therefore, torture, punishments that amount to ill and humiliating treatment, and the death sentence are bars to extradition under the Turkish law.
The discretionary grounds for refusal of a request for extradition include: the requested party’s jurisdiction over the offense; the requested party’s decision either not to institute prosecution or to terminate proceedings in respect to the same offense; and humanitarian considerations such as age, health, or other personal circumstances of the person sought.
The Supreme Court and Constitutional Court decisions reveal that although the treaty between Turkey and China is not in force yet, an extradition relation has already been established. Therefore, the Treaty will provide a legal or conventional basis for this relation. However, it is anticipated that there will be challenges in the assessment of requests for extradition between the two countries, particularly from Turkey. The Treaty raises concerns among Uighur Turks, who are settled in Turkey and are considered terrorists by China. The Uighur Turks fear that they will be extradited to China. The widespread human rights violations of China in Xinjiang-Uighur Autonomous Region, which have been covered in human rights organizations reports and ECHR decisions, indicate that such concerns are not unfounded. Moreover, concerns over the impartiality of Chinese criminal courts, the torture and ill-treatment allegations, and the implementation of the death sentence are likely to pose a challenge in the extradition of persons from Turkey to China. Turkey is a party to the ECHR and its Additional Protocols and it accepts the jurisdiction of ECHR. Majority of the ECHR decisions regarding the cases of deportation and extradition to China show that the rights of those extradited were violated due to the oppressive policies of China in the XinjiangUighur Autonomous Region. Therefore, despite the potential political pressure, the Turkish judicial authorities must consider the ECHR case law, as well as human rights law, before making a decision to extradite persons of interest to China.
