Poland: penal procedure code protects against refoulement in the extradition context The Code of Penal Procedure 1997 bars extradition when there is a reasonable suspicion that the State seeking extradition could subject the person to be surrendered to torture. Tunisia: anti-terrorism law provides refoulement protection in the extradition context This tool is to be read in conjunction with CTI’s UNCAT Implementation Tool on Non-Refoulement Procedures and Safeguards T O O L UNCAT Implementation Tool 4/2018 NON‑REFOULEMENT PROCEDURES AND SAFEGUARDS Article 88 of the Law No. 26 of 2015 provides, “extradition shall not be granted if there are real grounds to believe that the person who is the subject of the extradition request risks being tortured or that the extradition request is intended to prosecute or punish a person because of the person’s race, colour, origin, religion, sex, nationality or political ideas.” The absolute prohibition against refoulement set out in Article 3(1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention, or UNCAT) – namely the prohibition against the transfer of any person to a place where they would face a real risk of torture or other cruel, inhuman or degrading treatment or punishment (hereafter “torture or other ill-treatment”) – is a fundamental feature of the global torture prevention architecture. This tool includes some examples of the range of legal and practical procedures and safeguards that States have developed to give it effect. CONSTITUTIONAL PROVISIONS  The prohibition against refoulement is widely recognised in constitutional texts and/or legislation. Some States’ constitutions enshrine the prohibition against refoulement explicitly; in others, constitutional provisions, stipulating that binding international treaties (e.g., UNCAT) prevail over contrary domestic law, have given effect to the prohibition against refoulement. The courts of some States have also confirmed the latter. Article 3, UNCAT 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. “ It is insufficient merely to intervene after the infliction of torture, when the physical or moral integrity of human beings has already been irremediably harmed. States are bound to put in place all those measures that may pre‑empt the perpetration of torture.” Prosecutor v. Anto Furundzija, No. IT-95-17/1-T, Judgment of the International Criminal Tribunal for former Yugoslavia, 10 December 1998, para. 148 The CTI ‘UNCAT Implementation Tools’ are a series of practical tools designed to share good practices among States on the implementation of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). They offer thematic guidance and ideas for State practitioners and policymakers as they develop or revise context-specific strategies, mechanisms and procedures to prevent torture and other forms of ill-treatment or punishment, and provide remedies for victims. 1/13 Judicial review Many countries include robust judicial checks on extradition requests, with the courts determining whether an extradition request can proceed. The courts are also involved in determining whether the requested individual will be provisionally arrested or detained. Georgia: Constitution provides a right to appeal extradition decisions before the Courts Article 13(4) of the Constitution of Georgia of 1995 provides that, “A decision on extradition may be appealed in court.” Upon receiving a request for extradition fulfilling all legal requirements, the Office of the Chief Prosecutor within the Ministry of Justice files a motion for extradition before a first instance court. The first instance court’s decision may be appealed before the Supreme Court of Georgia, whose decision, in turn, is final. If the extradition is found inadmissible by the courts, the Minister of Justice issues an order and denies the extradition. Japan: Tokyo High Court to decide on extradition of detained persons In Japan, under the Act of Extradition (Law No. 68 of 1953), bar certain circumstances, the Minister of Justice forwards the extradition request to the Superintendent Prosecutor of Tokyo High Prosecutors Office where a prosecutor applies to the Tokyo High Court for an examination of whether the case is extraditable. When necessary, prior to the application, the prosecutor may detain the individual concerned by obtaining a detention permit from a judge of the Tokyo High Court. The Tokyo High Court promptly starts the examination and makes a decision on whether the case is extraditable. If the person is in custody, the High Court makes a decision within two months since the start of detention. Madagascar: judicial review of extradition decisions Article 19 of the National Law against Torture (Loi N°2008-008 du 25 juin 2008 contre la torture et autres peines ou traitements cruels, inhumains ou dégradants) stipulates that no person shall be extradited by the Malagasy authorities to a State where he or she is at risk of being subjected to torture. Any extradition decision taken by the Minister of Justice is preceded by a judicial review conducted by the Court of Appeal, which includes consideration of the compliance of any prospective extradition with Madagascar’s obligations under international instruments. Malta: Constitution provides that extradition must be ordered by the judiciary The Constitution of Malta of 1964 provides that extradition shall be ordered by a judicial authority. TOOL: Cooperation on extradition 8/12