Source: Hong Kong 01 Comments
The government promotes the amendment of the regulations for fugitives, which can ignite social anger and be out of control.The bell also needs to be a bell person. It is necessary to improve the fugitive regulations, and the principles should be preceded. It is necessary to take the principle of human rights as Guizhen, and indicate that fair interrogation is the approval conditions. The transfer mechanism should only be targeted at the most serious crimes.In the long run, it is necessary for the Hong Kong government to reach bilateral agreements with the Mainland, rather than relying on special mechanisms.
From the first fine -tuning plan in March to the Six or Ninth National Congress of the Communist Party of China, although the government has made concessions many times, it cannot be issued from beginning to end.Even if the official claimed that the threshold of the sentence was enough for three years, but later it improved to seven years, which was equivalent to fighting his mouth.The outside world naturally determines that the concessions of the authorities are only in exchange for the support of the business community. It is a political bargain.
The regression problem itself, the fugitive transfer mechanism needs to be improved, because the special transfer arrangements under the current regulations are not specially designed, and it is difficult to operate. Before reaching an agreement with the Mainland, Hong Kong cannot handle crimes involving other Chinese regions, such as Chen Tongjia.However, since the amendment was proposed in February, the society has been worried that the Chief Executive dared not to refuse the mainland's transfer request, and the basic rights of the person who were transferred were ignored.Therefore, regardless of the government's left repair and right, if the core of the problem is not cut, even if the plan can be passed in the third reading of the Legislative Council, it is difficult to get the acceptance of the general public.
In the past few months, Tian Beichen and senior barrister Hu Hanqing have made anti -suggestions to make good efforts to improve the transfer mechanism).There are different suggestions on how to repair it; but from the theory of law, any plan must be in line with two major principles.First, it is the human rights standard for fugitives.
The first principle: right to interrogate
Article 10 of the Hong Kong Human Rights Act guarantees the right to equal equality before the court and accepts fair and open interrogations. Article 14 of the International Convention on Citizenship and Political Rights is also stated.The court conducted fair and public trials.The UN Human Rights Commission has also confirmed in the Wu Zhida case. If the extradition has a certain risk of no fair interrogation, the government is equivalent to the responsibility of protecting human rights.Therefore, when the government amend the regulations on the fugitive, it is necessary to ensure that the transferringee can get a fair interrogation opportunity.
Authorities have pointed out that they may be required to transfer applicants to protect the parties' legal rights.For example, Li Jiachao, director of the Security Bureau, stated at a press conference that he can agree to add the requirements of general human rights such as uncomfortable assumptions, public interrogation, lawyer representatives, interrogative rights, not forced confession, and the right to appeal.
However, these guarantees are not enough to affirm that the interrogation is fair and fair, and the authorities have always refused to explicitly stipulate that fair interrogation in the regulations is necessary.EssenceHow can society be assured of this plan?The so -called elasticity of the Chief Executive Lin Zheng was not willing to accept the restriction.
Therefore, the amendment of the fugitive regulations should be added to the clause, which explicitly stipulates that the transfer of the transfer arrangement of the transfer arrangement must refuse the application if there is a violation of citizenship and political rights in International Convention on Political Rights.If the Hong Kong government approves the transfer, and the parties may not get a fair interrogation, they will be able to appeal to the court in accordance with this clause.During the review process, the appellee and the government can propose evidence separately to explain the interrogation system for transferring the applicant.The court refers to the past cases and the interpretation documents of the UN Human Rights Commission to determine whether the right of fair interrogation for the transfer is guaranteed.
Of course, it is not easy to conclude that the interrogation system in another judicial area is not easy.The court can only make judgments from limited confession and evidence.However, the special transfer arrangement of the non -constant mechanism is that Hong Kong believes that there are very serious cases that must be dealt with without bilateral agreements, and even start individual transfer arrangements.Therefore, this approach can be described as an exception, and limitations are inevitable.And this is the second important principle of the transfer mechanism.
Second principle: for special cases
For the generation of globalization, the population flow is frequent. If the criminals fled to the other side, they would have the opportunity to avoid legal sanctions.Extraction arrangements can be important to the law to the law, although it is important.However, whether the cooperation between the two governments in the two places also depends on whether they have confidence in the mutual judicial system; if they have confidence, they will negotiate and cooperate with their government and promise to cooperate in the extradition fugitive.At present, Hong Kong has a transfer agreement with 19 countries, including the United States, Britain, Australia, etc.
The special transfer arrangement of the government this time refers to the fugitives that refer to the fugitive.In essence, this is bound to be the exception. For very serious crimes, even if there is no constant cooperation mechanism with the other party, it must be done.As Chen Hongyi, a professor at the School of Law of the University of Hong Kong and a member of the Basic Law Committee, pointed out in his public article that the United States, Canada, and the United Kingdom were exported to fugitives with regions without agreements under the special circumstances of very serious crimes.
Judging from this principle, the government's original plan covers 46 crimes and the threshold for sentences for one year. It is obviously too loose and failed to target very serious crimes.Even after compromising to the business community, the government first reduced the crime class to 37, and then increased the threshold for sentences to seven years. It eliminated crimes such as criminal intimidation and sexual behavior with minor girls.On the one hand, the concession reflects the government's inclined interest in the business community, causing anger; on the other hand, the newly revised transfer crimes still include receiving bets, big marriage, etc., which fails to reflect the essence of the mechanism is a special circumstances for very serious crimes.
From the threshold of one or three years to seven years, the government has not clearly intersects the agent's evidence, giving people a sense of things.Although Li Jiachao pointed out that the maximum sentence of seven years or more in Hong Kong was tried in the High Court, so the threshold for transfer was set for seven years or more to deal with the most serious crimes.But the government will not know that even if it is not a crime of ten evils, the maximum sentence can reach seven years or more.
Here, it is not necessary to say that fake passports, gambling, and big marriage do not need to fight, but I believe that many people will agree that these crimes are not seriously exempted by the government without an agreement.Therefore, it is not enough to reflect the nature of the transfer mechanism for special circumstances. If the government has to make articles on the torture, it may be further increased to increase persuasiveness if the government has to make articles during the sentence.But more importantly, the threshold of the sentence itself is not enough to judge which crimes should be included.
Basically, the government must re -examine the list of crimes, because the original 46 crimes were not designed for special transfer mechanisms, but stated what kind of crimes can be covered by bilateral protocols.Cover.Just as the former director of the Police Department, Zeng Weixiong also proposed that the fugitive regulations should first target violent crimes such as killing and setting fire.
For example, the first six items in the list of crimes, namely murder crimes, promoting suicide by others, malicious injuries, sexual crimes, serious obscenity children, kidnapping, etc., may be less controversial.EssenceOf course, the government can consider whether six crimes will be too small, such as the crimes related to firearms, harmful race, etc., which is also worthy of transfer.In this regard, the government and the Legislative Council can be discussed again.However, it is definitely that the current list and threshold are too hasty, not only failed to master the nature of the mechanism, but even the suspect of replacing the constant agreement.
Bilateral protocol party is the best policy
The government seems to be intended to handle the displacement of fugitives in the Mainland in the middle and long term.If so, the outside world may ask, why not?
First, there is a essential difference between the special transfer arrangement and the bilateral protocol mode.Special transfer arrangements are applicable to all jurisdictions that have not been reached, so it is necessary to strictly regulate and only apply to rare cases with serious crimes; bilateral protocols are based on mutual trust and believe that the other party can protect the right of fair interrogation of the transferor, soApproval can be relatively loose.
Therefore, if the government transferred fugitives with the Mainland with a special mechanism, it will face the dilemma: either, it can only deal with very limited cases and cannot really crack down on crimes;likeIn the former, the Lin Zheng government must be self -made, while holding Hong Kong to be able to become a fugitive paradise, and to allow many fugitives to stay outside the French Open; if the latter is the latter, this repair is to open the door to the mainland to sacrifice the whole whole.The original intention of the special transfer mechanism.
Second, although Hong Kong is an independent jurisdiction area, it is not a sovereign state, under China's sovereignty.If the central government's request for transfer, how will the Hong Kong government be worried about how to control it.In his public article, Chen Hongyi frankly said that the Hong Kong courts would be in a difficult and unfavorable position when the Hong Kong courts decided whether the laws and judicial systems in the Mainland met in accordance with the relevant human rights standards that needed to be met before the extradition was approved.
Considering the unique design of one country, two systems, if the government wants to handle cooperation with the Mainland with a general transfer mechanism, it is afraid that it is impractical.As early as 1997, the authorities were planned to be intentionally included in the Chinese region outside Hong Kong, and the bilateral agreement with the Chinese government had intended to regulate the export of fugitives with a long -term bilateral agreement.Article 95 of the Basic Law states that the Hong Kong Special Administrative Region can provide judicial links with judicial links and assistance to each other in accordance with the law with judicial organs in other parts of the country.
Today, the government map has modified the special transfer mechanism of the fugitive regulations to deal with the arrangement of fugitives with the Mainland once and for all.Facing the dilemma of dilemma, it can be described as injustice.
